The Employment Appeal Tribunal has ruled that a dismissal may be discriminatory notwithstanding the fact that the employer first obtained knowledge of the employee's disability when she appealed against her dismissal. The outcome of an appeal against a dismissal is "integral to the overall decision to dismiss" and the Tribunal should have considered the appeal decision when considering the overall discrimination claim. The decision is also a reminder that the "something arising from disability" does not need to be the sole or principal cause for the unfavourable treatment; it only needs to have a "material influence" on the decision.

Facts

The Claimant was employed as a housing support worker. She was dismissed at the end of her 6 month probationary period following various performance related concerns. Those concerns had been raised with her during employment and included:

  • Breach of professional boundaries by loaning money to a service user
  • A complaint by a service user about the tone of her text message
  • Failure to maintain confidentiality regarding information relating to service users
  • Failure to consult with senior staff regarding instructions left with her
  • Her communication and interaction with colleagues and management

She appealed against her dismissal. At the appeal hearing, she said that she suffered from depression which sometimes caused her to behave unusually, to say things "unguarded", and to suffer from short term memory loss. Her appeal was unsuccessful and she brought a claim for discrimination arising from disability. The Tribunal rejected her claim finding that at the time of the dismissal, the Housing Association had no knowledge of her disability. It also considered that her communication style was only one of the five concerns that the Housing Association had and that it would have dismissed her in any event for the other reasons. She appealed the decision.

Decision

The EAT allowed the appeal. It held that the outcome of an appeal against dismissal is "integral to the overall decision to dismiss" therefore the Tribunal was wrong in holding that any knowledge acquired after the original decision to dismiss was irrelevant. On the facts of this case, there was an argument that the Housing Association acquired actual or constructive knowledge of the Claimant's disability during the appeal hearing, which the Tribunal had failed to consider.

The EAT also held that the Tribunal had applied the wrong test in rejecting the discrimination arising from disability claim on the basis that it considered that the Claimant would have been dismissed for one of the other performance concerns in any event. The "something arising in consequence of disability", here the Claimant's communication style, need only have had a "material influence" on the employer's decision to dismiss; it need not be the "sole" or "principal" reason (although it may have a consequence on remedy).

The case was therefore remitted to a new Tribunal.

Comment

The decision clarifies that an appeal is an integral part of the decision to dismiss therefore any constructive or actual knowledge that the employer acquires right up to the point of making a decision on the appeal will be relevant. Appeal managers should be trained to identify these issues and factor this in when making their decision. The decision is also a reminder that so long as the "something arising in consequence of disability" materially affects the employer's decision to treat the employee unfavourably, this will be sufficient to satisfy such claim.

Baldeh v Churches Housing Association of Dudley, Employment Appeal Tribunal