The dismissal of an employee may have been discriminatory even though the employer only found out about her disability at the internal appeal hearing.
Mrs Baldeh was a housing support officer at a housing association. Various concerns were raised during her probationary period which were discussed with her. Following a probationary review meeting, she was told that her employment would be terminated because she had not made satisfactory progress during her probationary period. The issues that were raised at the meeting were:
- Breach of professional boundaries by loaning a service user money without authorisation;
- A complaint from a service user about the tone of a text message which she had sent;
- Two incidents involving breaches of data protection;
- Failing to consult with senior staff about an instruction she had been given; and
- Her communication and how she related to colleagues and her manager.
At the time the decision was made to dismiss Mrs Baldeh she had not mentioned anything that might have suggested that she had depression or was disabled.
Mrs Baldeh appealed against the decision to dismiss her. The appeal letter did not mention any kind of depression or disability. However, during her appeal hearing, she raised her mental health. She told the hearing that she had had a breakdown in the past, she knew the signals, that she had seen this pattern of her behaviour before, and she could say things that were unguarded. Her comments were reflected in the employer's outcome letter which rejected her appeal.
Mrs Baldeh brought a claim of disability discrimination, claiming that she had been treated unfavourably because of something arising in consequence of her disability.
The employment tribunal dismissed Mrs Baldeh's claim because:
- the housing association did not know, and could not reasonably have been expected to know, that she was disabled at the time of the dismissal;
- there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) "arose in consequence" of her disability;
- there were other reasons for her dismissal in addition which were sufficient;
- the dismissal was justified.
Mrs Baldeh appealed to the EAT. The EAT allowed the appeal. In relation to the points above, it held that:
- Although the housing association did not know about Mrs Baldeh's disability at the time of the dismissal, it may have acquired actual or constructive knowledge of her disability before the rejection of her appeal. The rejection of the appeal formed part of the unfavourable treatment of which she was complaining.
- There was some evidence that her depression caused her behaviour and the tribunal should have considered this.
- It was sufficient for the "something arising in consequence" of the disability to have a "material influence" on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim.
- The tribunal had not considered the justification defence properly.
The case was remitted to a fresh tribunal.
What does this mean for employers?
This case is a reminder that if there a signs an employee might be disabled an employer may well be fixed with knowledge of disability. Employers should not brush aside suggestions by an employee that they might be disabled, even where the suggestion is made late on at an internal appeal.
The case law regarding discrimination arising from disability has established that employees need only show a loose causal connection between their disability and any unfavourable treatment they suffer. The fact someone may have impaired judgment as a result of a disability is likely to be sufficient to put the burden onto the employer to show why their actions are justified. Employers should ensure thought is given as to why the action taken against an employee is proportionate. Noting this will be a crucial part of the defence of such claims.
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