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Disability revealed at appeal hearing

The Employment Appeal Tribunal in the case of Baldeh v Churches Housing Association of Dudley and District Ltd has considered whether it was discriminatory to dismiss an employee when disability was only revealed at appeal stage.

 Background

 The Claimant was a housing support worker employed by Churches Housing Association (“the Association”). She was dismissed at the end of her probationary period due to concerns about her performance including inappropriate tone in communications, overstepping boundaries with service users and communication with staff. The Claimant appealed against her dismissal.

At the appeal hearing, the Claimant stated that she was suffering from depression and as a result, this affected her behaviour and caused short term memory loss.

Despite the Claimant’s disclosure about her depression, the Association upheld the decision to dismiss, finding that her actions still warranted dismissal.

The Claimant brought a claim for discrimination arising from disability.

 The Law

 Under section 15 of the Equality Act 2010, discrimination can arise when a person treats a disabled person unfavourably because of something arising in consequence of their disability.

In this case, the Claimant alleged that the unfavourable treatment was her dismissal. The “something arising in consequence of her disability” (i.e. her depression) was her communication style.

Decision

The Employment Tribunal dismissed the claim on the basis that the employer could not have reasonably been expected to know that the Claimant was disabled at the time of dismissal.

The Employment Appeal Tribunal (“EAT”) upheld the Claimant’s appeal. It held that, at appeal stage, the Association should have considered whether the Claimant’s behaviour which resulted in her dismissal arose from her disability.

The EAT also held that although there were several reasons for her dismissal, the Claimant did not need to show that the “something arising in consequence” of her disability was the sole or principal reason for her dismissal to be discriminatory. The tribunal should have considered if the “something arising in consequence” had a “material influence” on the decision to dismiss.

The case was remitted to another tribunal to consider.

Comment

 The case is an important reminder that any new information that comes to light at an appeal stage should be considered carefully and where appropriate investigated before any decision to uphold or dismiss an appeal is made.

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