20 June 2019

What happens when you only find out about a disability late in a disciplinary process?

A right to appeal is a key part of any employment process. Even if you only find out about an employee’s disability during an appeal, recent cases suggest you need to take it into account. Failure to do so could support a discrimination claim. If an employee tells you about a disability during an appeal, you should also review your reasonable adjustments.

The Equality Act 2010 makes it unlawful to treat an employee unfavourably because of something arising from their disability, unless the employer can show that the treatment is a proportionate means of achieving a legitimate aim. However, this only applies if the employer knew (or should have known) about the disability.

Employers also have a duty to make reasonable adjustments for employees who are disabled (potentially including to disciplinary processes and outcomes).

In the case of Baldeh v Churches Housing Association of Dudley and District Limited, Mrs Baldeh was a support worker and was dismissed following concerns about her behaviour, including aggressive behaviour towards colleagues.

At her appeal, she told the Housing Association that she was suffering from depression, and that it may have influenced her behaviour towards her colleagues and affected her short-term memory.

The Housing Association upheld her dismissal.

She then brought a Tribunal claim for disability discrimination. The Tribunal found in favour of the Housing Association, holding that:

• the employer had no knowledge of Mrs Baldeh’s disability at the time of her dismissal
• there was no evidence that Mrs Baldeh’s behaviour had arisen as a result of her depression
• there were other reasons for her dismissal which were sufficient
• the dismissal was justified as being a proportionate means of achieving a legitimate aim (i.e. the aim of maintaining professional standards in the workplace).

Mrs Baldeh appealed.

Appeal

The Appeal Tribunal said:

• while the employer did not know about Mrs Baldeh’s disability at the time of her dismissal, it did when it rejected her appeal. The appeal is a key part of the dismissal process and knowledge at that stage can be relevant to disability discrimination
• there was some evidence that Mrs Baldeh’s depression could have caused her behaviour but that evidence had not been considered by the Tribunal
• the Tribunal had applied the wrong test in determining the reasons for Mrs Baldeh’s dismissal. The reasons connected to the disability do not have to be the principal reason for dismissal, just a material influence
• the Tribunal had failed to consider properly proportionality – i.e. balanced the impact on Mrs Baldeh of losing her job and the employer’s need to maintain workplace standards.

The case has been sent back to a fresh Tribunal for reconsideration. Mrs Baldeh’s dismissal could still be found to be reasonable in all the circumstances, but the new Tribunal will need to consider the above in reaching their decision.

If you would like more information, please contact Rowena Kay at rkay@hcrlaw.com or on 01242 246 429.

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About the Author
Rowena Kay, Associate Solicitor
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