What should an employer do if an employee presents evidence of a disability at an appeal against their dismissal?

A recent case highlights the difficulties employers face when new evidence comes to light at appeal

A few weeks ago we published an article about the best use of probationary periods and the risks of claims arising from this early stage of employment. Discrimination claims can be brought without any minimum length of service. However, in the early days of an employment relationship, an employer may not be aware of the employee's protected characteristic. In the following case, the employer only found out about a probationer's disability during a dismissal appeal.

Case details: Baldeh v Churches Housing Association of Dudley & District Limited   

Mrs Baldeh worked for CHADD as a support worker. She was dismissed at the end of a six-month probationary period in June 2015 on the basis of poor performance and behavioural issues. Mrs Baldeh appealed the decision and explained at the appeal hearing that she experienced depressive episodes that affected her short-term memory and that could make her act aggressively towards others as a result.

Mrs Baldeh's appeal was not upheld. She brought a tribunal claim against CHADD alleging, amongst other things, her dismissal was the result of unfavourable treatment arising as a consequence of her disability under s.15 of the Equality Act 2010 ('EqA').  

The law

Section 15 EqA provides an employer facing such a claim with two main defences:

(i)    the employer did not know or could not reasonably have been expected to know (i.e. 'actual' or 'constructive' knowledge) that the employee had the disability; or

(ii)  the employer can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim.

The decision

The tribunal dismissed all of Mrs Baldeh's claims but the EAT found a number of errors with the tribunal's reasoning relating to the issue of s.15 EqA disability discrimination.

First, the tribunal found that CHADD did not have actual or constructive knowledge of Mrs Baldeh's disability at the time the decision was made to dismiss her. The EAT found this was wrong: at the time of the appeal decision confirming dismissal, the employer did have actual knowledge of her disability.

Second, the EAT held that the tribunal had wrongly focused on the fact that there were other reasons why Mrs Baldeh had been dismissed apart from those arising from her disability. The key question according to the EAT was whether something arising from her disability had a material influence on the dismissal.

Third, the EAT noted that the tribunal had identified legitimate aims for CHADD. These were 'maintaining standards required of individuals working with vulnerable people' and of 'maintaining a workforce where staff can work amicably in a pressured environment'.  However, the tribunal had completely overlooked whether the action taken was proportionate, failing to weigh up the impact on the claimant of losing her job against the needs of the employer.

The EAT ordered that the case be sent back to a fresh tribunal.

Wrigleys comment

There are some useful lessons to be learned in this case, particularly in relation to employers taking appropriate action where disability issues arise at the later stage of a process.

If evidence of disability is presented at appeal after a decision to dismiss has been taken and the employer had no knowledge of the disability prior to dismissal, the employer cannot ignore the new information. It is advisable for the employer to carry out further investigation of the employee's mental or physical condition, seeking information from a medical professional or occupational health advisor and asking particularly whether any disability relates to the reasons for the dismissal. This information should be taken into account when making the appeal decision.