In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd, Baldeh was dismissed following the expiry of her probationary period, for concerns relating to her performance. During the appeal process, Baldeh disclosed that she suffered from depression which impacted on her behaviour.
Her appeal against her dismissal was unsuccessful. The employer upheld its decision to dismiss. Baldeh issued a claim in the Employment Tribunal for disability related discrimination. Baldeh argued, among other things, that the rejection of her appeal was unfavourable treatment. The Tribunal held that the employer did not have knowledge that she was disabled when it decided to dismiss but that, in any event, the employer was able to justify the dismissal as a proportionate means of achieving a legitimate aim.
The Employment Appeal Tribunal (EAT) found a number of errors in the Tribunal's judgment. Following Baldeh's disclosure of her depression in the appeal hearing, the employer had knowledge of her disability. There was evidence before the Tribunal that her depression caused or contributed to the relevant behaviour. The EAT found her behaviour was a significant influence on the unfavourable treatment which she complained of and therefore she had been treated unfavourably because of something (the behaviour) arising in consequence of her disability (her depression). The employer could not rely on a lack of knowledge at the time of dismissal as a defence. It did not matter that there were other causes for her dismissal, unrelated to her disability. All that matters is that it had a material influence on the decision to dismiss, which the Tribunal held it did, in this case.
It is important for employers to remain vigilant to new information that comes to light at any stage of the employment process and be sure to take everything into consideration. The fact that the employer did not have knowledge of Baldeh's disability at the time of dismissal was not enough. It acquired knowledge at the appeal stage.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.