Poor performance and resulting dismissal was not discrimination arising from a disability


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The Employment Appeal Tribunal (EAT) has held in Stott v Ralli Ltd that the dismissal of a paralegal for poor performance was not an act of discrimination arising from disability.

The claimant was employed as a paralegal for a period of three months before being dismissed for poor performance. Following her dismissal she submitted a grievance stating that she had been dismissed because of her disability and that there was no evidence of poor performance. At the grievance hearing she stated that her disabilities were mental health issues, anxiety, depression and a heart condition. She said that her mental health had affected her performance and that she had "sort of mentioned her disability" at her interview. Her grievance was rejected and the rejection letter stated that the claimant had never told the respondent about her disabilities. The claimant appealed unsuccessfully and then brought a tribunal claim for discrimination arising from disability (a mental health impairment) in relation to her dismissal.

The tribunal dismissed her claim, holding that she had been dismissed for poor performance. The EAT then dismissed her appeal. It found that her claim had been brought solely in relation to her dismissal and therefore the tribunal had not erred by failing to treat knowledge or constructive knowledge acquired after the dismissal meeting as relevant to the claim.  While in unfair dismissal claims the dismissal is regarded as a process which encompasses the appeal stage and outcome the approach to discrimination claims is different. In cases involving discrimination a claim that a decision to dismiss was discriminatory, and a claim that an appeal decision was discriminatory are distinct from one another and must be raised separately. The claimant had not raised a claim of disability discrimination in relation to the decision to dismiss the appeal from the rejection of her grievance. There had been several preliminary hearings which explored the question of which claims she was seeking to bring, and there had been no suggestion of any complaint relating to alleged treatment after the date of her dismissal.

Take note: The decision in Stott makes it clear that there is a distinction to be drawn between the questions for a tribunal in an unfair dismissal claim and those in a discrimination claim.  In the former an appeal is part of the process and is relevant to the question of fairness, whereas in the latter the issues relating to a decision to dismiss and any appeal from that decision will be separate. Where an employer is deemed to have knowledge of an employee's disability at some point between the dismissal and the appeal against the dismissal the employee will have to make a separate claim based on the appeal decision if they want to argue that that decision was an act of discrimination arising from their disability.

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