In the recent case of Baldeh v. Churches Housing Association of Dudley and District Ltd. the Employment Appeal Tribunal (EAT) has ruled that dismissal can be classed as disability discrimination even where an employer has been unaware of an employee’s disability until an appeal hearing.
The Equality Act 2010 dictates that when person A treats person B unfavourably on account of circumstances arising from person B’s disability, it is discrimination if person A cannot prove that their actions are proportionate to their aim. Person A is only liable for discrimination if they either know, or can reasonably be expected to know, that person B is disabled.
In this matter Mrs. Baldeh was a support worker dismissed by Churches Housing Association at the end of a six month probationary period for poor performance and rudeness to colleagues. She did not disclose her disability at the disciplinary hearing, so was dismissed simply for poor performance. However, at her appeal Mrs. Baldeh disclosed that she suffered from depression and argued that this was the reason for her behaviour and performance issues. Churches Housing Association, still believing that her actions were worthy of dismissal, refused to reverse the decision and the matter was brought before a Tribunal.
Mrs. Baldeh claimed ‘discrimination arising from disability’ and argued that she had been treated unfairly. The Tribunal ruled that there was no discrimination because the emploer had been unaware of the depression at the time, and that even had they been so aware she would have been dismissed on other grounds anyway.
The EAT upheld Mrs. Baldeh’s appeal, ruling that since Churches Housing Association had gained at least a ‘constructive’ knowledge of her depression at the appeal meeting they should have investigated further before proceeding with the dismissal. It pointed out also that a disability did not have to be the sole or even principal reason for a dismissal to have, nevertheless, a ‘material influence’ on the decision. This opens the door to a discrimination claim.
The consequences for employers of this ruling are that great care needs to be taken to consider any potentially significant mitigating evidence revealed at an appeal carefully and fully. An appeal should not be treated merely as a review of a previous decision. The hearing should be postponed if necessary to allow time to investigate, and it may be necessary to commission a medical report on the consequences of any alleged disability. Importantly, employees in such circumstances may legitimately have been embarrassed to disclose a disability earlier, so need to be given some benefit of doubt.
