This case highlights the fact that a claim for discrimination arising from disability can only be made out when the employer could reasonably be expected to know that the employee in question had a disability.
The Claimant in this case worked as a paralegal in a law firm. The Respondent was unhappy with her job performance and dismissed her in her probationary period. After her dismissal the Claimant got in touch with HR and complained of discrimination on the basis of her mental health.
The day after the dismissal, the Claimant raised a grievance stating that she was a model employee and was dismissed on the basis of her disability. The grievance meeting revealed that the Claimant suffered from anxiety, depression, and a heart problem. The Claimant said she had alluded to this in her interview. She also claimed to have disclosed her depression to a colleague by saying that she had not been sleeping well and hadn’t felt like herself.
The Respondent rejected her grievance and appeal stating that they were unaware of her disability. The Claimant then raised a claim at the employment tribunal of disability discrimination in respect of her dismissal.
At the tribunal, the Respondent accepted that the Claimant had a disability but argued that they did not know about this prior to the dismissal. The tribunal agreed, and dismissed her claim. The Claimant then appealed to the EAT.
The EAT also dismissed the claim. As part of her appeal, the Claimant argued that the grievance she submitted after her dismissal formed part of the dismissal process, and at that point the Respondent was fully alive to her disability. In unfair dismissal law for example, a tribunal will examine the entire dismissal process up to and including any appeal in order to assess fairness. But in this case, the EAT held that the act of dismissal and the raising of a subsequent grievance were separate acts, and the tribunal had not erred in considering the act of dismissal alone when that was what the Claimant had alleged was discriminatory.
This case shows that employers can only be expected to act on what they know. However, there is no room to be complacent. If the Claimant had framed her claim to encompass the grievance and appeal, as well as the original dismissal, then it could not have been said that the Respondent was unaware of the disability. Any information obtained between dismissal and a grievance or appeal process will need to be taken into account, so it is essential that this is handled correctly.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.