Is there a risk of discrimination claims where disability is first raised in a post-dismissal grievance process?

Dismissal was not discriminatory because employer did not know about disability.

A key question in disability discrimination claims is often whether an employer knew or should reasonably have known about the claimant’s disability at the time of the alleged unfavourable treatment. This is because employers can defend most disability discrimination claims if they can show that they did not actually know about the disability and could not be expected to have known or found out about it, for example because of the claimant’s conduct, sickness absence or symptoms. An employer who does not know but should reasonably have known about the disability has so-called “constructive knowledge”.

Discrimination arising from disability

Employees can bring a claim under section 15 Equality Act 2010 that they have been subjected to unfavourable treatment because of something arising in consequence of a disability. For example, they could argue that they were dismissed because of poor performance, and the poor performance was connected to a mental health condition qualifying as a disability under the Equality Act.

For the claim to succeed, the employer must have actual or constructive knowledge of the disability at the relevant time. There is no need for the employer to know that the poor performance (for example) was connected to the disability, they only need to know about the disability itself. 

Where an employee is dismissed for a reason which is later found to be connected to a disability, the question will be whether the employer had actual or constructive knowledge of the disability at the time it took the decision to dismiss.

It can often be the case that employees will argue only at the dismissal appeal stage that the reason for the dismissal was connected to a health condition. In turn, employers may argue that they did not and could not have known about the condition beforehand.

What are the risks for employers who go on to confirm a dismissal decision in these circumstances? Could this be discriminatory treatment bearing in mind the employer’s new knowledge about the employee’s potential disability?

A recent case has clarified how tribunals should approach this question.

Case details: Stott v Ralli Ltd

Ms Stott was employed as a paralegal. Following concerns about poor performance, she was dismissed during her probationary period. She did not appeal the dismissal decision, but instead raised a formal grievance. The grievance, and a subsequent grievance appeal were not upheld. Ms Stott brought claims to an employment tribunal including a number of disability discrimination claims.

It was accepted that the claimant’s anxiety and depression was a mental impairment which met the definition of disability in the Equality Act. However, the tribunal found that the employer did not and could not have known about this disability at the time of the dismissal and so dismissed the claimant’s claims.

The claimant appealed to the EAT. The EAT held that the tribunal had failed to make a finding on whether the claimant’s poor performance was connected to her disability. However, the claimant’s other grounds of appeal failed. In particular, the EAT held that the tribunal was right to conclude that the employer did not have actual or constructive knowledge of the claimant’s disability at the material time. It noted that the claimant had not appealed the dismissal itself and that she had not argued in her claim that the outcomes of her grievance or grievance appeals were in themselves discriminatory.

The EAT helpfully made clear that for the purposes of an unfair dismissal claim (which the claimant here did not have the length of service to bring) “dismissal is regarded as a process encompassing the appeal stage and outcome”. But this is not the case in a discrimination claim, where each instance of alleged unfavourable treatment should be pleaded so that the tribunal can consider whether the reasons for that treatment are discriminatory. In this case, the claimant had not alleged that the post-dismissal grievance process was discriminatory and so the employer’s knowledge of her disability at this stage of the process was irrelevant.

Key risks for employers

In this case the employer succeeded in defending the claim because it did not and could not have known about the disability at the time of the dismissal and the claimant specifically did not raise a discrimination complaint about the grievance process. However, it is possible that the claimant could have succeeded in a disability discrimination claim relating to the outcome of the grievance process if the claimant had raised such a complaint. This is because the employer was found to have constructive knowledge of the disability by that stage.

For further information on a case where an employee was successful in a claim where her disability came to light at the dismissal appeal stage, see the following article from May 2019, available from our website:  What should an employer do if an employee presents evidence of a disability at an appeal against their dismissal?. In this case, the EAT held that the tribunal should have considered that there was a complaint that the dismissal appeal itself was discriminatory.

Minimising the risk of disability discrimination claims

Employers who find out about a possible disability following dismissal (whether in a dismissal appeal or grievance process) are best advised to carry out a reasonable investigation into the employee’s condition as part of that process. This might include asking the claimant to provide medical evidence from their GP or consultant, reviewing medical information already held by the organisation, or questioning the decision-maker as to the reason for dismissal. This evidence should be taken into consideration in the post-dismissal appeal  or grievance process, in order to decide whether the reason for dismissal arose from or was influenced by a disability.

If employers do know or should have known about the disability, they can still defend section 15 Equality Act claims if they can show that the treatment was a proportionate means of achieving a legitimate aim; in other words it was appropriate and necessary in the circumstances. This means having strong documented business reasons for the decisions taken and being able to show that there was no less discriminatory way to achieve the same aim.

It will usually be difficult to show discriminatory treatment was justified if the employer knew about the disability and reasonable adjustments were not made to help the employee overcome barriers created by their disability. For example, adjustments to HR processes or to the role itself.

Taking legal advice at an early stage in these circumstances can assist employers in lowering the risks of a claim being brought and increasing the chances of defending any claim which does arise.