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Can a Dismissal be Discriminatory if an Employer Doesn’t Know of the Disability Until an Appeal Hearing?

In Baldeh v Churches Housing Association of Dudley and District Ltd the EAT held that a dismissal could still be discriminatory where the employer only became aware of the employee’s disability (depression) at the appeal stage of the disciplinary process.

Mrs Baldeh was employed as a housing support worker for 6 months by a Housing Association before being dismissed at the end of her probationary period. Her dismissal was due to concerns about her performance.

She subsequently appealed against her dismissal and during the appeal process she disclosed that she suffered from depression and stated that this caused her to behave unusually, to suffer short-term memory lapses and to say things “unguarded”. Despite Mrs Baldeh’s disclosure, the employer upheld her dismissal.

Following her unsuccessful appeal, she brought a claim for discrimination arising from disability and at the first instance Employment Tribunal it held that her depression did amount to a disability but that the employer did not have knowledge of her depression until her appeal hearing. It also held that there was no evidence that the reasons relating to her dismissal were linked to her disability and that other reasons unrelated to her disability would have meant that the employer would have dismissed her in any event. The Tribunal concluded that the dismissal was also a proportionate means of achieving a legitimate aim.  

Mrs Baldeh appealed the decision to the EAT who allowed her appeal on various grounds.  In respect of the employer only becoming aware of her disability at the appeal process, the EAT said that whilst it was arguable the employer had knowledge earlier than the appeal hearing, the outcome of an appeal against a dismissal is "integral to the overall decision to dismiss". As such, it stated that the tribunal should, therefore, have considered the appeal decision as part of the claim relating to dismissal, and decided whether the appeal decision was discriminatory.

The EAT also held that the tribunal had taken the wrong approach in determining that other reasons unrelated to her disability would have meant that the employer would have dismissed her in any event. In reaching its decision the EAT held that all that is required is for the "something arising in consequence of disability" to have had a "material influence" on the decision. It does not have to be the sole or principal cause of the unfavourable treatment. Consequently, it decided that just because there were other reasons for dismissal it would not mean that the dismissal was fair or not discriminatory, although it will be relevant when determining the level of compensation, if absent of the discrimination, the employee would be dismissed in any event.

The EAT’s decision highlights than an employer’s appeal process is a key component of the decision to dismiss. It is important for employers to note that even when they only become aware of an employee’s disability at a late stage in the disciplinary proceedings, the employee’s condition and its effect should be considered before any decisions are reached. Therefore, if an employee only discloses their disability at an appeal hearing they should not penalise an employee on this ground.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.