Disability Discrimination: Dismissal discriminatory even if employer only learned of disability at appeal

In Baldeh v Churches Housing Association of Dudley and District Ltd [2019] UKEAT/0290/18 the employer had had concerns about her performance and behaviour and at the end of a six-month probationary period she was dismissed. She appealed the decision, informing them of her depression, but her appeal was turned down. Mrs Baldeh claimed this was disability discrimination (s.15 of the Equality Act 2010).

At the tribunal it was accepted that Mrs Baldeh was ‘disabled’ by reason of depression at the relevant time, but there was an issue about whether the employer knew or ought to have known about that before the date of the dismissal and that issue was decided against Mrs Baldeh. The tribunal rejected the claim because the employer 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; and the dismissal was justified by being a proportionate means of achieving a legitimate aim (as per s.15(1)(b) EqA 2010).

The EAT allowed the appeal. There were errors in relation to each stage of the reasoning. Although the employer did not know about her disability at the time of the dismissal, they may have had actual or constructive knowledge of it before the rejection of her appeal and the rejection formed part of the unfavourable treatment of which she was complaining. There was in fact some evidence that her depression caused the relevant behaviour which the tribunal ought to have considered.  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 failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response.

The EAT remitted the matter to a fresh tribunal to consider whether the rejection of the Mrs Baldeh’s appeal was an act of discrimination.

Published: 17 May 2019

Article Sections: Ending employment | Discrimination

Tags: disability, discrimination

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