In Baldeh v. Churches Housing Association of Dudley and District Ltd [2019] UKEAT/0290/18, the Employment Appeal Tribunal (EAT) held that, where an employer is unaware of an employee's disability at the time of dismissal but learns about this disability at an appeal hearing, the dismissal may be considered discriminatory. 

Mrs Baldeh was a housing support worker who was dismissed at the end of a six-month probationary period following various concerns about her performance. She appealed against her dismissal.

During the appeal meeting, Mrs Baldeh informed her employer that she suffered from depression, claiming that it affected her behaviour and caused short-term memory loss. Her employer rejected the appeal.

Mrs Baldeh subsequently brought a claim for disability discrimination. However, it was rejected by the tribunal on the following grounds:

  • her employer did not and could not reasonably have been expected to know about her disability at the time of the dismissal;
  • there was no evidence that her "blunt" style of communication with colleagues was linked to depression, rather than a personality trait; 
  • her employer had several other reasons in addition to communication style that justified her dismissal; and
  • her dismissal was justified as a proportionate means of maintaining professional standards required of individuals caring for vulnerable young people.

The EAT overturned the Employment Tribunal's original decision and remitted the case to a fresh tribunal to determine whether the employer's rejection of her appeal was discriminatory. 

Although Mrs Baldeh's employer may not have known about her disability at the time of the dismissal, the EAT held that they may have acquired actual or constructive knowledge before rejecting her appeal. The case is a helpful reminder for employers that an appeal is an essential part of the decision to dismiss. This means that any additional information which comes to light during an appeal hearing needs to be considered by an employer when determining the overall fairness of the dismissal.

Another key point raised by the case is that an employee does not need to show that "something arising in consequence" of their disability was the sole or main cause of their dismissal for it to be considered discriminatory. The employer in this case contended that there were several reasons for the dismissal. However, the correct approach should have been to consider whether the "something arising in consequence" of the employee's disability (i.e. Mrs Baldeh's communication style) had a "material influence" on the decision to dismiss.

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