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Discrimination arising from disability: when is an employer aware (or should be aware) an employee is disabled?

12 June 2019

Section 15(1) of the Equality Act 2010 provides that discrimination arising from disability occurs when A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is justified. There won’t be such discrimination if the employer can show that it did not know, and could not reasonably have been expected to know, that the employee was disabled.

The Employment Appeal Tribunal case of Baldeh v Churches Housing Association of Dudley & District Ltd considered when an employer could have reasonably have known about an employee’s disability. Ms Baldeh was dismissed at the end of a 6 month probationary period following concerns regarding her performance, including her behaviour to other members of the team. She appealed her dismissal, which was rejected.

Ms Baldeh then brought a claim of discrimination arising from disability as she was suffering from depression at the material time. The original Employment Tribunal rejected Ms Baldeh’s claim as it held that the Respondent did not know, and could not reasonably have known, that she was disabled at the time of the dismissal, there was no evidence that Ms Baldeh’s behaviour leading to her dismissal arose “in consequence” of her disability, there were other sufficient reasons for her dismissal and her dismissal was justified in any event.

On appeal, the Employment Appeal Tribunal disagreed entirely with the Tribunal. It held that, although the Respondent did not know of Ms Baldeh’s disability at the time of her dismissal, she did refer to her mental health at her appeal and so the employer may have known or ought reasonably to have known she was disabled before it rejected her appeal. Further the EAT held that there was some evidence that Ms Baldeh’s disability caused the behaviour complained of, and the fact that there may have been other influences on the dismissal (other than the discrimination arising from disability) was not a defence. Finally the EAT held that the Tribunal had failed to consider properly whether dismissal was a proportionate response in the circumstances.

The case was therefore remitted to a fresh Tribunal to consider whether the employer’s rejection of Ms Baldeh’s appeal was discriminatory.

Comment

This case serves as a further note of caution to employers when dealing with disabled employees. In this case, the employer had not received any clue this employee may be disabled until her appeal following her dismissal when she referred to her poor mental health. Although the fresh Tribunal will decide whether any discrimination occurred on the facts of this case, employers would be wise to consider in such circumstances the impact, or potential impact, any condition may have had on a poorly performing employee’s conduct. Depending on the circumstances, it may be appropriate to obtain medical evidence as to any such impact to enable employers to make reasoned decisions. It is by no means impossible to dismiss disabled employees for reasons unrelated to their disability or where it is justified to do so, but caution is required so that employers are able to demonstrate they have acted within the range of reasonable responses.

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