A recent Employment Appeal Tribunal (EAT) decision rejected a disability discrimination claim when the employer only knew about the disability after the employee's dismissal.
The claimant worked as a paralegal in a firm of solicitors, employed from October 2017.
In November 2017, the claimant discussed errors in her work with a solicitor that she worked with. The paralegal explained to the solicitor that she was having trouble sleeping, but no further information was provided. The solicitor perceived this as simply a passing comment.
Following further concerns about poor performance, the claimant was later dismissed by the firm during her probationary period on 8 January 2018. After dismissal the claimant sent a grievance letter to the firm on 9 January 2018, asserting that there was no evidence of poor performance, and that her dismissal had been due to her disability.
At the grievance meeting on 16 January 2018, the claimant confirmed that her disabilities were mental health issues, anxiety, depression, and a heart condition. The claimant suggested that her performance was affected by her mental health and that she had 'sort of mentioned her disability' at her job interview. The claimant also suggested that earlier comments to solicitors at the firm regarding her issues with sleeping amounted to disclosure of her disabilities. The grievance was rejected, as was a grievance appeal.
Subsequently, the paralegal brought a number of disability discrimination claims to an employment tribunal.
Discrimination arising from disability can be brought under section 15 of the Equality Act 2010 (EA 2010). This occurs where both:
- The employer treats an employee unfavourably because of something arising in consequence of the employee's disability.
- The employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.
An employer who does not know but should recently have known about the disability has so-called 'constructive knowledge'.
Whilst accepting that the claimant's anxiety and depression was a mental health condition which met the definition of disability in the EA 2010, the employment tribunal found that the employer could not have reasonably known, or have been expected to know, about the disability at the time of dismissal and so dismissed the claimant's claims.
The Claimant appealed to the EAT. Whilst the EAT held that the tribunal had failed to consider whether the claimant's poor performance was in consequence of disability, she failed on her other grounds of appeal.
The EAT held that the tribunal was right to conclude that the employer did not have actual or constructive knowledge of the claimant's disability when the employer dismissed the claimant. The claimant had not argued that the outcomes of the grievance or grievance appeals were in themselves discriminatory. Therefore, the EAT judged that it was not just to consider what the firm knew after dismissal and during the grievance process, as this was not relevant to her claim.
This makes a distinction between complaints about discriminatory dismissal and the discriminatory appeal process itself: they are different matters. This contrasts with unfair dismissal claims under section 19 (indirect discrimination) EA 2010, where the whole process is considered part of the question of fairness.
Furthermore, the EAT rejected the claimant's other ground of appeal, confirming that the employer had a proportionate means of achieving a legitimate aim (the 'justification defence'). The firm had the legitimate aim of 'maintaining a high standard of and accuracy in English language in written communication with clients and with the courts, as would be expected of a professional solicitors' firm'. The treatment of the claimant 'in terms of supervision, efforts to correct her work and ultimate dismissal', were proportionate to achieving the legitimate aim.
It should be noted that, had the point regarding the employer's knowledge changing during the appeals process been raised at the outset to the Employment Tribunal, the point of appeal may have succeeded. This can be seen in a previous case, Baldeh v Churches Housing Association of Dudley & District Limited, where the EAT held that the tribunal should have considered that there was a complaint that the dismissal appeal itself was discriminatory.
Overall, this disability discrimination case highlights that employers should consider all relevant factors during the dismissal process. This includes taking new knowledge into account, even if this is received during the grievance process or dismissal appeal. Where disability is raised as an issue after dismissal, employers are best advised to carry out reasonable investigation into the employees' conditions as part of the process. This could include asking the claimant to provide medical evidence from the GP.
Employers should also mitigate risk by having an open and accepting culture to neurodiversity and hidden disabilities. It should be noted that the firm in this case was criticised for its recruitment policies. Having HR processes that encourage individuals to feel comfortable informing the employer at an early stage of their employment will ensure that the employer has full knowledge of the issues and circumstances, thus minimising the risk of disability discrimination claims.
Lastly, it should be noted that, even if an employer knows (or should have known) about a disability, it can still show that the treatment was a proportionate means of achieving a legitimate aim. It is important, however, to have strong, well-documented business reasons for the decisions taken and to be able to show that there was no less discriminatory way to achieve the same aim. If the employer knew about the disability and reasonable adjustments were not made to help the employer overcome obstacles arising from the disability, it is likely to be difficult to show that discriminatory treatment is justified.
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