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Disability Discrimination

The Employment Appeal Tribunal (EAT) held in Baldeh v Churches Housing Association of Dudley and District Ltd that where an employer was told about the employee’s disability (depression) for the first time at the appeal hearing, the dismissal could still be discriminatory under section 15 of the Equality Act 2010, even though the employer was not aware about the employee’s disability at the time of dismissal.

Mrs Baldeh was employed as a Housing Support Worker and was dismissed by her employer, a Housing Association, at the end of her six-month probationary period because of her performance and her behaviour towards her colleagues.

Mrs Baldeh appealed against her dismissal and mentioned, at the appeal hearing, that she suffered from depression and that this could have influenced her behaviour towards her colleagues. In particular she said that her depression sometimes caused her to behave unusually, to say things “unguarded”, and also caused short-term lapses in memory. Her appeal was rejected.

A claim for discrimination arising from disability under section 15 of the Equality Act 2010 (EqA 2010) was brought by Mrs Baldeh. The Employment Tribunal accepted that Mrs Baldeh’s depression amounted to a disability. However, it rejected Mrs Baldeh’s claim.

The EAT allowed Mrs Baldeh’s appeal against the Employment Tribunal’s judgement because of errors in relation to each stage of the Employment Tribunal’s reasoning:

  • The Employer did not know about the Claimant’s disability at the time of the dismissal, however they may have acquired actual or constructive knowledge of it before the rejection of Mrs Baldeh’s appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining.
  • There was in fact some evidence that Mrs Baldeh’s depression caused the relevant behaviour which the Employment Tribunal ought to have considered.
  • It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment. The fact that there may have been other causes as well was not an answer to the claim.
  • The Employment Tribunal failed to consider the section 15(1)(b) defence properly. In particular, they failed to address the question whether dismissal was a proportionate response.

The EAT, as a result of the above, remitted the issue to a fresh Employment Tribunal to consider whether the rejection of the Claimant’s appeal was an act of discrimination under section 15 EqA 2010.

The important point to take from this for employers is that the appeal process is an integral part of the decision to dismiss. It is relevant to consider whether an employer had knowledge of an employee’s disability and what it knew or ought to have known right up to the point at which it decides the outcome of any appeal.

About the Author

Rajveer Basra

Solicitor

Rajveer is a Solicitor who works in the Employment team.

She advises employers, senior executives,…

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