Consideration should have been given to whether the employer knew the employee was disabled when it rejected her appeal against dismissal


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The Employment Appeal Tribunal (EAT) has held in Baldeh v Churches Housing Association of Dudley and District Ltd that an employment tribunal should have considered whether the employer had gained actual or constructive knowledge of a claimant's disability by the time it rejected her appeal against dismissal.

The tribunal had only considered whether the employer had knowledge of her disability when it reached the initial decision to dismiss.

The claimant was employed as a support worker, and dismissed at the end of her six-month probationary period due to her performance and her behaviour towards her colleagues. She appealed against her dismissal, and raised the fact that she was suffering from depression which could have influenced her behaviour towards her colleagues. Her appeal was rejected and she claimed that she had been subject to disability related discrimination under section 15 of the Equality Act 2010.

The tribunal rejected her claim, accepting that she was disabled at the time of her dismissal, but that the employer did not know, and could not reasonably have been expected to know that she was disabled. The EAT disagreed and remitted the matter to a fresh tribunal. It found that although the employer did not know about her disability at the time of dismissal, it may have acquired actual or constructive knowledge of it before it rejected her appeal against the decision to dismiss.

The claimant had complained of discriminatory unfavourable treatment in her dismissal which had to be taken as including the rejection of her appeal against dismissal. The tribunal should have considered the employer's knowledge at that stage of disciplinary proceedings. The tribunal had also failed to consider the claimant's own evidence as to how her depression could affect her behaviour and performance. The correct test for the tribunal to consider was not whether there were other causes for dismissal, but whether the matters arising in consequence of the disability had a "material influence" on the decision to dismiss.

Take note: Following Baldeh it will be important for employers to note that an appeal is an integral part of the decision to dismiss. It will therefore be relevant to consider whether an employer knew, or ought to have known, about the employee's disability right up to the point at which it decides the outcome of an appeal.

This article is taken from HR Law – June 2019

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