In this update, we consider disability and dismissal. In particular, we address the case of Baldeh v. Churches Housing Association of Dudley and District Limited. The case highlights that tribunals must have regard to an employer's knowledge of disability not only at the time of reaching the initial decision to dismiss, but also when deciding to reject any subsequent appeal against the dismissal.
It also raises broader questions, in the context of corporate employers, regarding exactly which individuals possess relevant knowledge.
The claimant was employed as a support worker. At the end of her six-month probationary period, she was dismissed. Her employer cited her performance and her behaviour towards colleagues and service users as reasons for her dismissal. She appealed against the decision to dismiss her and an appeal hearing was arranged. During the appeal hearing, she mentioned that she suffered from depression – something that she said could have affected her behaviour towards her colleagues. The claimant mentioned that she could respond aggressively to others whilst suffering a depressive episode, and that her short-term memory could also be affected (a factor that was potentially relevant to her employer's concerns about her performance). Her appeal letter was silent on any kind of depression or resulting disability.
The claimant's appeal against her dismissal was rejected by her employer. She brought a claim before the employment tribunal for, amongst other things, disability related discrimination under section 15 of the Equality Act 2010.
Employment Tribunal Decision
The employment tribunal rejected the claimant's claim. Whilst it accepted that her depression amounted to a disability, the tribunal considered that her employer did not know about her depression (and disability) at the time of deciding to dismiss her (and could not reasonably be expected to have known that she was disabled). The tribunal also considered that there was no evidence that the claimant's behaviour arose in consequence of her disability, and that any such behaviour was only one factor in her dismissal. It determined that these other reasons for dismissal were sufficient. Even if her dismissal was unfavourable treatment because of something arising in consequence of her disability, it considered that such treatment was justified in the circumstances.
The claimant appealed.
Employment Appeal Tribunal (EAT) Decision
The EAT considered that each stage of the tribunal's reasoning was flawed, and allowed the claimant's appeal. Whilst it accepted that the employer did not know about the claimant's disability at the time of dismissing her, it considered that the employer may have acquired actual or constructive knowledge of the disability before it rejected her appeal. The EAT also considered that the claimant's complaint of unfavourable treatment in respect of her dismissal had to be taken to include the rejection of her appeal against her dismissal. Accordingly, her employer’s knowledge at the time of rejecting her appeal was relevant.
Regarding evidence that the claimant's disability affected her behaviour, the EAT considered that the claimant's own evidence was relevant and should have been taken into account by the tribunal. The tribunal had failed to do this. The fact that the claimant's behaviour was not the only reason for her dismissal also did not mean that her discrimination claim was defeated. It was enough for the "something arising in consequence" of her disability (the particular behaviour in question) to have had a "significant influence" in causing the unfavourable treatment.
As a result of the multiple errors in the tribunal's reasoning, the claimant's case was remitted to a fresh tribunal for consideration. The EAT was also scathing of the employment tribunal's finding that the claimant's dismissal was objectively justified as a proportionate means of achieving a legitimate aim. The EAT noted that, in addition to identifying any legitimate aim, a tribunal must engage with a claimant's disability and balance any prejudice to a claimant of losing their job against the need to achieve whatever legitimate aim is being relied on.
In determining whether an employee has been discriminated against as a consequence of something arising from his or her disability or not, a tribunal must consider whether an employer has actual or constructive knowledge of a claimant’s disability. In the light of this case, both the initial dismissal and the rejection of the appeal against the initial dismissal will form part of the alleged unfavourable treatment in respect of dismissal cases where discrimination arising from disability is being alleged. However, it is worth noting that the claimant was a litigant in person and it is possible that a less sympathetic approach may be taken in respect of pleadings made by represented litigants.
It is not necessary for an employer to be aware of the "something arising in consequence" of the disability, if it treats the employee unfavourably because of that "something." However, it must have known – or ought reasonably to have known - about the disability to be liable for any resulting claim.
As detailed above, the case also raises broader questions about who can be said to have exactly what knowledge at the relevant time and who is the ultimate decision-maker. Generally speaking, employers should avoid using disciplinary or appeal panels and instead identify one person who will have responsibility for making the decision at each stage of the process. If an employer is concerned about, for example, the potentially discriminatory attitude of an investigating officer earlier in the process, it would be wise to ensure that any manager appointed to chair any hearing is not tainted by any earlier discriminatory treatment. The manager should be sufficiently senior to be detached from day-to-day issues relevant to the matter in question and have had no prior involvement in the particular matter. A different, ideally more senior manager, should always be appointed to hear any appeal.
Some practical tips before rejecting an appeal against a dismissal:
Consider any new information that may have arisen on appeal. Do not ignore any submissions made by an employee during any hearing, even if they were not referred to in any appeal letter.
Does any new information mean that there is now actual or constructive knowledge of disability? Was it reasonable to have known that the employee was disabled on the facts?
When drafting any appeal outcome letter, ensure that the letter makes it clear who has made the decision. The decision-maker must take ownership of the decision they have reached. References should be to "I," rather than "we." Members of Human Resources can advise on process and procedure, but should not make the decision itself.
Finally, employers should remember that actual or constructive knowledge of a disability is not required where indirect discrimination is being alleged.