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Can Dismissal still be Discriminatory if an Employer was Unaware of Disability until Appeal Hearing?

Discrimination arising from disability arises where an employee is treated unfavourably because of something arising in consequence of their disability. Acts of discrimination can be generated by a number of sources, such as an employer’s actions or the actions of an employee’s agents or colleagues. 

 

The key piece of legislation relating to discrimination at work is known as The Equality Act 2010 (EA), which provides protection for every section of UK employment. The EA recognises several different forms of discrimination which include, direct discrimination, indirect discrimination and harassment and victimisation. 

 

Under section 15 of the Equality Act 2010, if an employee is treated less favourably because of “something arising in consequence of their disability” this is seen as an act of discrimination. The employer cannot show that this treatment of their staff member has the intention of achieving a legitimate aim – with an example of this treatment being demonstrated within the Baldeh v Churches Housing Association of Dudley and District Ltd case.

 

The Employment Appeal Tribunal

 

The Churches Housing Association of Dudley and District Ltd is a small charitable Housing Association. Their purpose as an organisation is to provide a range of housing options for people who need support to enable them to live in the community. Mrs Baldeh was an employee of this charity who was dismissed after her six-month probationary period as a housing support worker due to various concerns about her conduct.

 

The complaints about the employee involved concerns about her communication style, a complaint from a customer about the tone of a text message, failure to maintain the confidentiality of service user information, breach of professional boundaries by loaning money to a service user, and failure to consult with senior staff. 

 

During Mrs Baldeh’s appeal hearing, she informed the Housing Association that she suffered from depression and that this sometimes caused her to behave unusually. As a result, short-term memory loss was a direct side effect, as well as struggling to communicate effectively with others. Despite the fact that The Housing Association rejected her appeal, it was brought forward as a claim for discrimination arising from disability, where The Employment Tribunal accepted that Mrs Baldeh’s depression amounted to a disability. 

 

Once again, Mrs Baldeh’s claim was dismissed as the Housing Association had no actual or constructive knowledge of her depression at the time of her dismissal. The Tribunal also held that her dismissal was justified by the legitimate aim of maintaining professional standards – but Mrs Baldeh also appealed this decision. 

 

The EAT remitted the case, after allowing her appeal, bringing it forward to a different Tribunal for a re-hearing. During this EAT, the Housing Association’s argument that any knowledge about Mrs Baldeh’s disability coming after the decision to dismiss her was irrelevant, was dismissed. The appeal decision is integral to the overall decision to dismiss and should, therefore, have been considered – with the Employment Appeal Tribunal upholding the Claimant’s appeal and that the Claimant’s dismissal had constituted discrimination arising from disability.

 

Summary

 

This case is the perfect example of why an appeal decision forms an integral part of the decision to dismiss. Employees will not be penalised where they have not mentioned a disability until an appeal hearing, so it is important that employers are wary of new information that comes to light during appeal hearings. It is also important to be alert to any issues relating to disability when considering an employee’s conduct or performance, as they should be considered when deciding whether to uphold a decision to dismiss.

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