Disability Discrimination - It's Not What You Know, It's What You Ought To Know

Posted on 15th May 2019

A recent case before the Employment Appeal Tribunal (EAT) has highlighted a number of areas relating to the law on disability discrimination where employers need to exercise caution. 

The case of Baldeh v Churches Housing Association concerned an employee, Mrs Baldeh, who was dismissed at the conclusion of her 6 month probation period for reasons relating to her behaviour and performance.
 
Mrs Baldeh suffered with depression, but she had not raised this with her employer up to the date of her dismissal. She did however appeal against her dismissal, and in the course of the appeal hearing, indicated that her mental health could have impacted on her behaviour and performance. Mrs Baldeh’s dismissal was, nevertheless, confirmed on appeal.

The case was heard by an employment tribunal in the first instance which rejected Mrs’s Baldeh’s claim for disability discrimination. The tribunal found that the employer did not have knowledge of Mrs Baldeh’s disability at the date of the dismissal, there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal), was related to her disability and there were other reasons for her dismissal which were sufficient in any event.

On appeal, the EAT disagreed with the approach taken by the employment tribunal. It found that the employer became aware of the Mrs’s Baldeh’s disability at the appeal stage and that the appeal was part of the overall decision to dismiss Mrs Baldeh.  Furthermore, the EAT found that there was some evidence that Mrs Baldeh’s depression had caused the relevant behaviour. Crucially, the EAT also found that, although there may have been other reasons for Mrs Baldeh’s dismissal, the behaviour arising in consequence of her disability only had to have a significant influence on the decision to dismiss. It did not have to be the sole or principal cause of the dismissal for the employer to be liable for unlawful discrimination.

This case raises a number of practical considerations for employers. Firstly, in order to be liable for disability discrimination, an employer must have known, or should reasonably be expected to have known, that the employee had a disability. This means that there will be cases where an employer has not been informed directly that the employee has a disability but there are nevertheless surrounding circumstances that should have put the employer on notice that this was the case. In other words, it's not just what you know but what you ought to know.

Secondly, if an employee raises issues of discrimination in any part of the disciplinary/dismissal process (including any appeal), those allegations need to be taken seriously and addressed to avoid the danger of potential claims and liability.

Finally, this case demonstrates that it may not be enough to simply state that there were other non-discriminatory reasons for a dismissal if there is something else arising as a consequence of the disability (in this case Mrs Baldeh’s behaviour), which has a significant influence on the decision to dismiss.   
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