In Baldeh v Churches Housing Association of Dudley and District Ltd, the Employment Appeal Tribunal (EAT) held that where an employer found out about a disability for the first time at a dismissal appeal hearing, the dismissal could still amount to discrimination arising from a disability.
Ms Baldeh was a housing support worker at a Housing Association. She was dismissed at the end of a six-month probationary period, because of concerns about her performance during the course of her employment. One of these concerns related to the style of her communication with colleagues and her manager. At the appeal, Ms Baldeh mentioned, for the first time, that she suffered from depression and that this caused her to behave unusually, to say "unguarded" things and to suffer short-term memory lapses. Her employer dismissed her appeal and Ms Baldeh brought a claim in the Employment Tribunal.
What did Ms Baldeh claim?
Ms Baldeh claimed discrimination arising from a disability under s.15 of the Equality Act. This occurs where an employer treats an employee unfavourably because of “something arising in consequence of” the employee’s disability. Ms Baldeh claimed that she was dismissed (unfavourable treatment) because of her communication/behaviour (the “something”) that arose in consequence of her depression (her disability). The tribunal accepted that her depression amounted to a disability, but dismissed her discrimination claim. Ms Baldeh appealed to the EAT.
Since an employer will not be liable for discrimination arising from a disability if it does not know (and could not reasonably have been expected to know) that the worker has a disability, one issue for the EAT was whether the dismissal decision in this case was capable of being discriminatory if the employer only found out about the disability at the dismissal appeal hearing.
The EAT’s decision
The EAT upheld Ms Baldeh’s appeal against the tribunal decision. The key points of general significance in the judgment are:
- Since the decision in an appeal against a dismissal is "integral to the overall decision to dismiss", the appeal decision should be treated as part of the claim relating to the dismissal. The tribunal should therefore have considered whether the appeal decision was discriminatory.
- The "something arising in consequence of” Ms Baldeh’s depression (the behaviour/ communication issues) need only have a "material influence" on the treatment in question (the dismissal). It did not have to be the sole or principal cause of that treatment. The fact that the employer gave other reasons for the dismissal, such as breaches in data security, which did not arise in consequence of the disability was immaterial to the question of whether there was discriminatory treatment. The existence of these other reasons could, however, be relevant to the question of compensation.
- The tribunal had been right to accept that the employer had a legitimate aim (maintaining standards required of individuals working with vulnerable people and maintaining a workforce where people could work amicably in a pressured environment). However, when considering whether the employer’s action could be justified, the tribunal had failed to properly assess whether the dismissal was a proportionate response. It ought to have weighed the prejudice to Ms Baldeh of losing her job for something potentially arising out of her disability against the employer's need to maintain standards and an amicable working environment.
This case confirms the broad nature of discrimination arising from a disability. Even if you only become aware that an employee has an underlying condition that might have affected their behaviour, performance or attendance at an appeal hearing, you should not ignore it. The safest course of action would be to pause the process and investigate whether the condition might have contributed to or caused the behaviour, performance or attendance in question, usually by obtaining medical evidence. Even if an employee is not legally disabled, whether and to what extent their condition contributed to their actions may be relevant to the fairness of the decision to dismiss in any event.
If you already know that an employee has an underlying condition before you get to an appeal stage of a dismissal process, you will be able to take this into account during the process, thereby reducing your legal risk. In addition, armed with knowledge about the condition, you may be able to implement strategies to prevent the issue with the employee’s conduct, performance, or atendance arising in the first place or becoming serious enough to result in potential dismissal.
Encouraging employees to tell you about their condition
Employees can be reluctant to disclose information about underlying conditions, such as hidden disabilities, mental illness or certain ‘taboo’ physical conditions. Reducing the stigma around such conditions in the workplace can make employees more comfortable about telling you what is affecting them.
One way of doing this is through ‘role modelling’, where senior managers who have particular conditions talk openly about their condition and how it affects them at work, including any positive aspects of the condition and how they have overcome any challenges.
Training managers and HR to respond sensitively to employees with underlying conditions can also be very effective in helping to create a supportive environment where employees feel confident about disclosing information about their health.
How we can helpMake UK’s upcoming national seminars, Managing ill health, tackling absence, promoting wellbeing will look at how to handle employees who are off sick with a physical or mental illness, or who remain at work but whose performance, attendance or behaviour is affected by an underlying condition. The seminar concentrates on how to manage absence robustly, whilst implementing solution focussed employee wellbeing strategies. Click here