Actual or constructive knowledge of disability – disability discrimination - fairness of dismissal
The Employment Appeal Tribunal (EAT) has recently allowed an appeal by an employee against the original tribunal’s decision to reject her claim for disability related discrimination even though her employer did not originally know that she was disabled.
The definition is as follows: A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability; and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
However, this does not apply if A can show that it did not know, and could not reasonably have been expected to know, that B had a disability.
In this case, Ms Baldeh was employed as a support worker by Churches Housing Association of Dudley and District Ltd (CHADD). She was dismissed at the end of her six-month probationary period because of her performance and behaviour towards her colleagues.
On appeal, Ms Baldeh raised the fact that she was suffering from depression, which could have influenced her behaviour towards her colleagues. Part of her argument was that she could respond in an aggressive way to others while suffering from a depressive episode. She also said that her depression could affect her short-term memory, which may have been relevant to the concerns about her performance. Despite this, her appeal was rejected.
Ms Baldeh made a claim to tribunal arguing, among other things, that she had been subjected to disability-related discrimination.
Initially, her claim was not successful. The tribunal concluded that CHADD did not know and could not reasonably have been expected to know that Ms Baldeh was disabled at the time of her dismissal.
She appealed to the EAT, which allowed her appeal against the tribunal’s judgment. It found that:
- whilst CHADD did not know about Ms Baldeh’s disability at the time of the dismissal, it had gained actual or constructive knowledge of it before it rejected her appeal (which formed part of the unfavourable treatment she was complaining of);
- there was some evidence that her depression caused the relevant behaviour which the Tribunal ought to have considered;
- it was enough 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; and
- the tribunal did not address the question as to whether Ms Baldeh’s dismissal was a proportionate response.
The court remitted the case back to an employment tribunal for further consideration.
The Equality Act 2010 (section 15) requires knowledge of disability, but although an employee might not expressly disclose her disability, it might be difficult for an employer to argue that it could not reasonably have expected to know about it. Employers will be expected to do all they reasonably can to find out if a worker has a disability. If mental ill health is raised by an employee during formal proceedings employers should do their upmost to discover what the true medical position is. Employers will also then be expected to show tolerance and take an illness into account when judging an employee’s performance and conduct.
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Copyright © 2018 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.