Knowledge of disability

In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd, the EAT allowed an appeal by a Claimant against the Tribunal’s decision to reject her claim for disability related discrimination.  Whilst it was found that the Respondent did not have knowledge of the Claimant’s disability (either actual or constructive) prior to dismissing her, it had gained this knowledge when it was told of her depression at the appeal hearing.  As the rejection of her appeal formed part of the Claimant’s complaint of unfavourable treatment, the issue of the Respondent’s knowledge was a relevant factor that should have been considered by the Tribunal. 

The Claimant was employed by the Respondent as a support worker on six months’ probation.  After various concerns had been raised about her performance and behavior towards colleagues, she was called to a review meeting and her employment was terminated at the end of her probationary period.  At her appeal hearing, she told the Respondent that she was suffering from depression which could have influenced her behavior towards her colleagues and affected her short-term memory.  After her appeal was unsuccessful, the Claimant brought a claim for disability related discrimination.

The claim was rejected by the Tribunal, which found that the Respondent did not know and could not reasonably have been expected to know that the Claimant was disabled at the time of her dismissal.  It also said:

• there was no evidence about her behavior towards her colleagues “arose in consequence of” her disability;
• there were other reasons for her dismissal in addition which were sufficient; and
• the dismissal was justified as being a proportionate means of achieving a legitimate aim (ensuring care by the employer for vulnerable people by a professional team)

However, her appeal to the EAT proved more successful.  Having identified a number of errors in the Tribunal’s reasoning, the EAT chose to remit the case back to be heard by a fresh tribunal.  It held that:

• whilst the Respondent did not know about the Claimant’s disability at the time of the dismissal, they had acquired actual or constructive knowledge of it before the rejection of her appeal (which formed part of the unfavourable treatment she was complaining of);
• there was in fact some evidence that her depression caused the relevant behavior which the 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; and
• the Tribunal had failed to address the question as to whether the Claimant’s dismissal was a proportionate response

Should you have any questions or concerns about how to manage disabled employees who may be subject to disciplinary proceedings, please do get in contact with a member of our Employment Team.