Over the years we have seen a growing number of claims being raised against employers by employees for alleged disability discrimination, including within the social housing sector. One defence for an employer is that it did not have actual or constructive knowledge that an employee was disabled at the time it committed the alleged discriminatory act. However, as the case below demonstrates, even though an employer may be unaware that an employee was disabled at the point of dismissal, this is not necessarily the end of the matter.

The recent Employment Appeal Tribunal (EAT) decision of Mrs B Baldeh v Churches Housing Association of Dudley & District Ltd (2019) (UKEAT/0290/18/JOJ) examined the effect of the requirement for there to be knowledge of disability for a claim of disability discrimination to succeed. In this case Mrs Baldeh was dismissed by the Churches Housing Association after six months’ probation because of her performance. There were a number of allegations including in respect of a lack of boundaries with service users, and the tone of her messages and communication with staff members of staff. She brought a claim for disability discrimination explaining that she suffered from depression which she said made her behave unusually and say things that were unguarded.

At the time of her dismissal the employer did not know she had depression and it was held by the employment tribunal (ET) that it could not reasonably have been expected to know about this. However, the employer offered an internal appeal against the dismissal and at this point Mrs Baldeh offered information about her mental health and its effects on her behaviour.

Initially the ET dismissed the claim of disability discrimination but this was overturned at the EAT. The EAT accepted that the employer may not have known that Mrs Baldeh had depression when she was first dismissed but concluded that it may, or should, have known she was disabled at the appeal stage. The employer should have taken account of whether the behaviour which led to her dismissal was something which arose as a consequence of that disability before rejecting her appeal, given what she had said about her mental health during the appeal hearing.

This case reminds employers to be alert to employees referring to medical conditions which could amount to a disability under the Equality Act, even if that information comes to light after a dismissal has taken effect, if there is still a live appeal. If this happens the employer should take care before confirming the dismissal and may need to seek occupational health reports. It will certainly need to consider reasonable adjustments. Although in this case there was no finding that the employer should have known about the disability at an earlier stage, employers should take note of red flags, such as unusual behaviour, which might be a consequence of an undisclosed disability and which may give them constructive knowledge of the employee’s protected status.