In this case, the Employment Appeal Tribunal (EAT) considered an employee’s claim for disability discrimination, when the employer was not aware of the disability at the time of dismissal but was told about it at the appeal hearing.
Baldeh v Churches Housing Association of Dudley and District Ltd  UKEAT/0290/18
The claimant was dismissed by her housing association employer at the end of her six-month probationary review, following a number of concerns about her performance. One area of concern included her communication style and how she related to her colleagues and her manager. The claimant appealed against her dismissal and at the appeal hearing she disclosed that she suffered from depression, which sometimes affected her behaviour and caused her to suffer short-term memory lapses. The appeal was unsuccessful and she brought a claim for discrimination arising from disability (s15 Equality Act 2010).
The claim was rejected by the employment tribunal, which found that the employer had no actual or constructive knowledge of the claimant’s disability at the time of the decision to dismiss.
The EAT upheld the claimant’s appeal and remitted the case to be reheard by a new tribunal. The employer arguably had actual or constructive knowledge of the disability before it made the decision to reject the claimant’s appeal against the decision to dismiss her. In the EAT’s view, the outcome of an appeal against dismissal is “integral to the overall decision to dismiss”. The tribunal should therefore have considered the appeal decision in deciding whether the dismissal was discriminatory on the grounds of the claimant’s disability. The appeal was also upheld on other grounds, including the tribunal's failure to properly consider the issue of justification.
Employers should always take into account any knowledge or further evidence that comes to light after a decision to dismiss, in considering whether or not to uphold an employee's appeal against that decision. As the EAT has demonstrated in this case, the appeal hearing should be viewed as an integral part of the decision to dismiss. It might be that an employer can still uphold the decision to dismiss but needs to demonstrate that it has taken into account the effects of the claimant’s disability before reaching this decision. In the same way that mistakes in the dismissal procedure can often be rectified at the appeal stage, rendering a dismissal fair, a failure to take into account new information at the appeal stage can result in a finding that the dismissal is unfair and/or discriminatory.
This article is from the May 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.