Laura Binnie and Jennifer Scott, in our Employment law team, explain when employers need to be aware of an employee's disability.
The Employment Appeal Tribunal has recently given a judgment regarding the appeal on the case of Baldeh v Churches Housing Association of Dudley and District Limited.
Mrs Baldeh had been employed as a support worker subject to 6 month probationary period; she was invited to a review meeting and was subsequently dismissed due to lack of progress of ongoing issues previously raised with her by her employer (comprising of her aggressive communication with other employees and her loss of sensitive data). The Claimant appealed the decision and during the appeal hearing, she explained that her behaviour can be unusual due to her mental health condition causing a blunt style of communication during depressive episodes and a loss of short-term memory which her employer had previously been unaware of. Her appeal failed and Churches stood by their decision to dismiss her.
The Claimant brought a claim to the Employment Tribunal (ET) alleging that she had been discriminated against because of something in arising in connection with her (mental) disability. For this claim to succeed, an employer needs to have known, or could reasonably have been expected to know, of the disability. The ET rejected the claim and found that:
- Churches were not aware of her depression at the time of dismissal, nor were they reasonably expected to have known;
- There was no evidence that her behaviour was connected to her disability; and
- There were other sufficient reasons that justified her dismissal demonstrating that the treatment was a “proportionate means of achieving a legitimate aim”.
The Claimant brought her case to the Employment Appeal Tribunal who allowed the appeal on the basis that:
- although the employer was not aware of her disability at the time of dismissal they may have gained actual or constructive knowledge of it before they decided to reject her appeal (which formed part of her dismissal) being part of the unfavourable treatment she experienced;
- there was evidence that her behaviour was connected to her disability which the ET failed to consider;
- her behaviour was a product of her disability which “materially influenced” her dismissal; and
- the ET had failed to correctly consider whether dismissal was “proportionate” in balancing the unfavourable treatment with achieving a legitimate aim.
Advice for employers:
- The point at which an employer becomes aware or (ought to have reasonably been aware) of an employee’s disability applies beyond termination through to the appeal process and decision; and
- Discrimination may be found if the “something” (being Mrs Baldeh’s behaviour in this case) arising from an employee’s disability is a significant reason for unfavourable treatment. It therefore does not need to be the main or sole reason for the unfavourable treatment.
Whether Churches’ rejection of Mrs Baldeh’s appeal against her dismissal amounts to disability discrimination and the amount of any compensation (if applicable) will be decided by a fresh ET.
It is however a warning in relation to appeal processes and dealing with ill health in the work place. Appeals should always consider the matter afresh and be open to assessing any new information that sheds light on the original decision. Here, the employee was complaining that part of the ‘unfavourable treatment’ she received was at the appeal. Disability discrimination can potentially take place at any point during and/or after the employment relationship – employers should always be alert to any new circumstances they become aware of, even if at a later internal stage and after termination of employment.
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