13 May 2019

One of the key issues when dealing with litigation relating to disability discrimination is the question of the employer’s knowledge of disability – what the employer knew or should have known. We focussed on this in our 2 update sessions earlier this year on disability discrimination and managing ill health in the workplace.

The recent Employment Appeal Tribunal (“EAT”) case of Baldeh v Churches Housing Association considered this issue in the context of a claim for discrimination for “something arising in consequence of a disability” under Section 15 of the Equality Act.  This claim can arise where an individual is treated in a particular way not due to disability itself but due to something arising in consequence of it – disability related absence, or poor performance etc.   For an employer to be liable it is necessary that at the time of the employer’s actions, it either knew or should have known about the disability.  It is not permissible however for an employer to wilfully “turn a blind eye” to the potential health issues

In the Baldeh case an employee was dismissed at the end of a probationary period due to concerns about performance and behaviour and other reasons.   It turned out that the employee was disabled and brought a claim arguing that her performance and behaviour were related to a disability – depression – and that therefore she had been subject to discrimination

• The employment tribunal dismissed the claim, accepting the employer’s arguments that:The performance/behaviour were not due to the disability
• Even if they were, the employer was not aware of the disability when deciding to dismiss
• There were other reasons for dismissal in any case
• In any event, dismissal was justified in all the circumstances

The EAT upheld the employee’s appeal against the tribunal decision, finding that:

• There was evidence of a connection between the conduct and the disability
• The tribunal had failed to take account of evidence that the employer may have been aware of the disability at the internal appeal stage.  At the internal appeal hearing the employee had mentioned her depression.  As the rejection of the employee’s internal appeal was part of the dismissal, and part of the actions that the employee was complaining of, there should have been proper consideration of what the employer knew (or should have known) at the appeal stage
• The fact that there were other reasons for dismissal was not a complete answer to the claim.  The tribunal should have considered whether these performance/conduct concerns (which could have been disability related) were a “significant influence” on the decision to dismiss
• The tribunal had wrongly assessed the issue of justification

The key issue here for employers relates to the issue of knowledge, and the need to be extremely careful if, following a decision to dismiss being communicated to an employee, the employee makes reference to health/disability issues.   That may well be enough to show that the employer knew or should have known about disability when dealing with an internal appeal, and will be something the employer would need to take into account.  

Of course, if the employer decides not to offer an internal appeal (for example if the employee has limited service, and there is no contractual obligation to offer an appeal) then the point may not arise, and the focus will be on what the employer knew at the time of dismissal (not what was said subsequently).  There are advantages and disadvantages to offering an appeal against dismissal to employees with short service, and these should be carefully considered with your employment law adviser.

For further information, please contact your usual BTO contact.

Contact: Douglas Strang, Senior Associate dst@bto.co.uk T. 0141 221 8012