Discrimination arising from Disability

Employment law

How far does the defence from an Employer that it “did not know and could not reasonably have been expected to know that the employee had the disability” really get?

In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd, the Employment Appeals Tribunal (EAT) has allowed an appeal against the Tribunal’s finding that Mrs Baldeh had been fairly dismissed on the basis that the Employer did not know, and could not reasonable have been expected to know about Mrs Baldeh’s disability at the time of dismissal.

The circumstances are that Mrs Baldeh, a Housing Support Worker, was dismissed on a number of performance related matters to include:-

• Breach of professional boundaries by loaning money to a service user
• The tone of a text message sent to a service user
• A failure to maintain confidentiality of service user information
• A failure to consult with senior staff regarding instructions that had been left
• Her communication style

Mrs Baldeh appealed the decision to dismiss and it was only at the appeal stage did she tell the employer that she had been suffering from depression and it was this condition that cause her to sometimes behave unusually and it would also result in her suffering with short-term memory lapses.

The Employer upheld the decision to dismiss and Mrs Baldeh issued Employment Tribunal proceedings bringing a claim of discrimination arising from a disability. The Employer defended these proceedings on the basis that at the time of dismissal it had no knowledge of her disability, there was nothing to suggest that her communication style was anything other than her personality trait and notwithstanding that, all of the other performance related reasons would have resulted in her dismissal which was justified.

Whilst the Employment Tribunal accepted the Employer’s position, the EAT disagreed on the basis that the Employer had actual or constructive knowledge of her disability at the appeal stage which is “integral to the overall decision to dismiss” and the issue was one of “material influence” over the decision to dismiss. The Tribunal also held that the Tribunal had failed to give due consideration to the question of proportionality when considering whether the reason to dismiss was reasonably justified in that no attempt had been made to balance the prejudice to which the employee would have been subject to in losing her job for a reason connected to her disability.

What comes from this case is the importance placed on the appeal stage of a disciplinary process. It is simply not enough to rely on a defence that was only applicable to the disciplinary hearing stage. Employers should ensure that they are fully investigating any new evidence that is presented and if necessary, having the disciplinary re-heard. Whilst in this case Mrs Baldeh might well have been dismissed for the other performance issues raised, which in turn would serve to reduce the level compensation she might be awarded, the Employer would have been able to better defend this claim had it of properly investigated the depression point at the internal appeal stage.

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