One form of disability discrimination that is often considered in the Employment Tribunal (ET) is ‘discrimination arising from a disability’. Essentially, this involves an employer treating an employee less favourably because of something that happens as a result of their disability, with an example being an employee who is dismissed for a high absence level where the absences are linked to their condition.
As a separate issue, it is often not understood that any new information that surfaces during an appeal against a disciplinary sanction (e.g. dismissal) should be investigated, and a failure to do so can affect the safety of a dismissal. Where that new information relates to a disability, ignoring the new information can also make the dismissal discriminatory, as the employer found out in this case.
The facts of the case
Mrs Baldeh was dismissed following her probationary period, as her employer had concerns in relation to her conduct and performance in the role, specifically in relation to:
- lending money to a service user;
- a complaint from a service user in relation to her tone in a text message;
- breaching rules on the confidentiality of service user information;
- not consulting with colleagues on instructions that she had been given; and
- her approach to communication and general interactions with colleagues and her manager.
Mrs Baldeh appealed her dismissal, and in the appeal hearing she stated that she had depression, and that the condition led to abnormal behaviour, being ‘unguarded’ in some of the things that she said, and issues with memory. When her appeal was dismissed she claimed discrimination arising from a disability.
The ET’s decision
The ET determined that she was disabled due to the depression, but rejected her claim on the following grounds:
- Her employer had no actual or constructive knowledge of the disability when she was dismissed (constructive knowledge meaning that the employer ought to have known about it).
- Mrs Baldeh provided no evidence to show that her ‘blunt’ communication style was linked to her condition rather than simply being her general character.
- The employer had four other reasons that justified her dismissal (i.e. those outlined above).
- The dismissal was justified as the employer had to uphold basic standards of behaviour in employees working with its service users and other colleagues in a challenging workplace.
The EAT’s decision
The Employment Appeal Tribunal (EAT) upheld Mrs Baldeh’s appeal on all four grounds. In relation to point 1, the EAT stated that the employer arguably had knowledge of the disability before making a decision on her appeal as Mrs Baldeh raised it as an issue.
The EAT went on to say that the appeal decision was ‘integral to the overall decision to dismiss’ and as such should have been considered by the ET when deciding whether the dismissal was discriminatory.
On point 2, the EAT noted that Mrs Baldeh gave evidence on that point, and that it was noted in the appeal outcome letter. As such, the EAT stated that the ET’s findings on that point were ‘just not right’.
On point 3, the EAT stated that the test was not whether there were other reasons to support the dismissal. Instead, the correct question to ask was whether the communications issues (the ‘something’ arising from her disability) were a ‘material influence’ in the decision to dismiss her. In short, the ‘something’ didn’t have to be the only or principal reason for the dismissal in order for it to be discriminatory.
The employer also failed on point 4, with the EAT stating that the ET did not balance the prejudice to Mrs Baldeh of being dismissed against the legitimate aim of her employer to uphold good standards of behaviour. So, while the employer had a laudable aim, that did not give it carte blanche to act in whatever way it felt necessary to achieve that aim.
The EAT therefore sent the case back to a fresh tribunal to be reconsidered.
What does this mean?
The first learning point from this case is that a disciplinary appeal forms part of the decision to dismiss, which is logical given that an appeal hearing has to make an assessment of whether an earlier dismissal was reasonable. That in turn means that any new information that comes to light at the appeal stage needs to be considered when determining the overall fairness of the dismissal.
Employers should bear in mind that a well-conducted appeal stage can ‘cure’ a flawed earlier disciplinary hearing, and shouldn’t be considered a simple tick-box exercise. It is simple to overlook issues that are raised at appeal, or to argue that they should have been raised sooner, but that will seldom (if ever) be a safe approach.
The second lesson is that an employee needn’t show that an issue linked to their disability was the only, or even the main, reason for their dismissal. Nor will it necessarily be a sufficient defence to show that the employer had a plethora of other reasons to dismiss the employee. If the employee can show that the ‘something’ was at least one of the significant reasons for their dismissal, their claim could still succeed, albeit the presence of the other reasons may limit the amount of compensation payable (as they may still have been dismissed even had the ‘something’ arising from the disability not been taken into account).
With that in mind, it is prudent to establish the reason for any poor behaviour or performance, and (where possible), rely only on issues that you can show are not linked to a person’s condition.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.