The Employment Appeal Tribunal rules on when an employer can be said to know about an employee's disability and what happens if there are multiple reasons for dismissal and some are not disabillity related.
The Claimant, Mrs Baldeh was dismissed at the end of a probationary period of her employment with CHADD as a support worker because of her performance and her behaviour towards colleagues. It was accepted at the hearing that she had depression that amounted to a disability under the Equality Act 2010, but she had only brought this to CHADD’s attention when she appealed her dismissal claiming that her depression influenced her behaviour towards colleagues.
The Employment Tribunal (ET) dismissed Mrs Baldeh’s claim that her dismissal was discrimination arising from disability under section 15 of the Equality Act. Section 15 states: -
(1) A person (A) discriminates against a disabled person (B) if—
A treats B unfavourably because of something arising in consequence of B's disability, and
A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The ET in this case found: -
that at the time of dismissal CHADD did not know and could not reasonably be expected to know that she was disabled;
there was no evidence that her behaviour “arose in consequence” of her disability;
there were other reasons for the dismissal as well as the behaviour towards colleagues; and
the dismissal was justified.
The Employment Appeal Tribunal (EAT) allowed the appeal. Although Mrs Baldeh had not mentioned her disability before dismissal, she raised it before the appeal which was part and parcel of her dismissal from employment. The ET was simply wrong in saying that there was no evidence that her behaviour arose from her depression as she had specifically raised this issue at her appeal. It was sufficient if the thing that arises from disability (here the behaviour towards colleagues) has a “significant” or “material” influence on the unfavourable treatment (here the dismissal). Finally the ET simply got the legal test for justification all wrong.
There are a few take-aways from the Baldeh case. To gain protection from discrimination arising from disability the employer has to know or it ought reasonably to be expected to know about the employee’s disability. Many people with mental health problems are reluctant to disclose their mental health problems to their employer and may not do so even in the face of dismissal. This makes it hard to gain the protection of the Equality Act. This case makes it clear that if an employee has chosen not to disclose before dismissal they can disclose on appeal and seek the protection of the Equality Act. Second, the “something arising” which leads to the unfavourable treatment does not have to be the sole cause of the unfair treatment for there to be discrimination arising from disability. The fact that there were a number of non-disability related factors which led to Mrs Baldeh’s dismissal as well as the disability related behaviour issues was not a defence. As long as the disability related issues can be said to have a “significant influence” on the unfavourable treatment that is enough for a finding of discrimination arising from disability.