When employees disclose a disability during an appeal hearing

In the case of Baldeh v Churches Housing Association, the Employment Appeal Tribunal (EAT) were required to decide if the revealing of a disability during a dismissal appeal hearing gave the employer actual or constructive knowledge of a disability.

This case concerned an employee who had reached the end of her six-month probation period. The employee was invited to a probationary review meeting, where she was informed that there had been several complaints regarding the way she communicated with her colleagues and her apparent lack of boundaries with service users. These sentiments echoed previous concerns that had been raised to her in earlier supervision sessions.

Of particular concern was the fact that the employee had loaned money to a service user without permission and breached data protection laws by not maintaining the confidentiality of service user information. The employee was ultimately dismissed as she had been deemed not to have made ‘satisfactory progress during her probation period’.

Having chosen to appeal the decision with her employer, the employee disclosed for the first time that she had depression, which had a long-term impact upon her behaviour and wellbeing. She outlined that her condition made her behave unusually, make unguarded statements and suffer from short-term memory loss. However, this appeal was rejected.

The employee proceeded to bring claims to an employment tribunal (ET) for unlawful discrimination, specifically citing section 15 of the Equality Act 2010 arising in consequence of her disability.  However, the ET dismissed her claim, finding that the organisation had no actual or constructive knowledge that she was disabled at the time of her dismissal, and any later knowledge of a disability was irrelevant.

The ET outlined that no evidence had been presented that showed her behaviour arose ‘in consequence’ of her disability and that there was nothing to suggest this was anything other than a personality trait. They found there were other substantial reasons for the dismissal not related to her style of communication and decided that the dismissal was justified.

However, the employee chose to appeal this decision to the Employment Appeal Tribunal (EAT), arguing that there was sufficient evidence to suggest her depression had caused the relevant behaviour which led to her dismissal. The EAT agreed and stated that the employer had actual or constructive knowledge of the disability prior to deciding to dismiss the employee’s appeal. It was also clear to the EAT that no effort was made by the employer to gather any further evidence, particularly as the employee was not sent to occupational health.

The EAT also explained that the ET did not do enough to prove that the dismissal was a proportionate means of achieving a legitimate business aim and failed to take into account the prejudice involved in dismissing the employee under the circumstances. Therefore, the decision to dismiss the employee was judged to have been in breach of section 15 of the Equality Act 2010.

This decision ultimately reminds employers of the importance of assessing the impact of any mitigating factors when dealing with incidents of misconduct, especially if these could be related to a disability. It also reiterates the need to consider any new evidence that is provided during a disciplinary appeal hearing, as failing to do so will not be looked on favourably by the courts.

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