Discrimination: should you have picked up on an employee’s disability?

Background

In December 2014, Mrs Baldeh started working for Churches Housing Association of Dudley & District Limited (“CHA”) as a support worker and was subject to a six-month probation period. Mrs Baldeh had depression but CHA was unaware of this at the time of her dismissal.

Concerns were raised about Mrs Baldeh’s conduct, including that she wanted to use her own methods rather than adopt CHA’s and these concerns were discussed during Mrs Baldeh’s supervision sessions. By letter dated 29 May 2015, Mrs Baldeh was invited to a probation meeting and advised of the concerns regarding her conduct including breaching professional boundaries by loaning a service user money, breaching data protection and confidentiality policies, her manner when liaising with service users and communication within the team and working relationships (“Four Reasons”). The letter confirmed that this could result in her employment being terminated.

Mrs Baldeh’s conduct did not improve and her employment was terminated on 18 June 2015. Mrs Baldeh appealed the decision: she did not refer to her depression but at the appeal hearing referred to her mental health and stated that she had had a breakdown in the past, knew the signs and could make unguarded comments. Whilst this new information was considered, Mrs Baldeh’s appeal was rejected.

Mrs Baldeh brought an Employment Tribunal claim for discrimination arising from disability and automatic unfair dismissal.

Employment Tribunal (ET)

The ET held that CHA did not and could not reasonably have known about Mrs Baldeh’s disability prior to the dismissal, but could have known as a result of the appeal hearing. However, the ET summarised Mrs Baldeh’s overall manner of communication as blunt and suggestive and felt that this was a personality trait, unrelated to her disability, that the Four Reasons for her dismissal were sufficient and that her dismissal was justified.

Mrs Baldeh appealed the decision, which was allowed in relation to the disability discrimination only.

Employment Appeal Tribunal (EAT)

The EAT concluded that the ET had erred in law. CHA had acquired knowledge of Mrs Baldeh’s disability prior to rejecting her appeal, which formed part of the unfavourable treatment complained of. The ET had wrongly concluded that there was no evidence linking her communication to her disability, as Mrs Baldeh had given evidence explaining that “she would respond aggressively to others whilst suffering a depressive episode“. It was also apparent that a depressive episode could impact her short-term memory, which may have been the cause of the confidentiality breach.

The EAT held that it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment. The ET’s reasoning was deficient; the disability does not have to be the sole or principal cause of the treatment (although this may impact any compensation), just a material influence.

In relation to the final issue, the ET failed to consider whether CHA had a defence to the claim i.e. whether the treatment was a proportionate means of achieving a legitimate aim.

The matter of whether the appeal rejection was discriminatory has been remitted to a different ET for consideration.

Comments

This case highlights the importance of carefully considering an employee’s explanation for their conduct during the dismissal process and whether this provides constructive knowledge of a disability.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.