A recent EAT judgment (Baldeh v Churches Housing Association of Dudley and District Ltd (CHADD)) has served as a (perhaps unwelcome) reminder to employers carrying out appeal hearings of the importance not just of keeping an open mind while conducting an appeal against dismissal, but also of being receptive to new facts raised by the employee on appeal.
Mrs Baldeh, a housing support worker, was dismissed by her employer, CHADD, a Housing Association, at the end of her six-month probationary period, purportedly because of her performance and her behaviour towards colleagues. The performance concerns included: breach of professional boundaries, a complaint from a service user, failure to maintain confidentiality, failure to consult senior staff, and her communication style and how she related with colleagues and her manager.
Mrs Baldeh appealed the decision, and during her appeal hearing informed CHADD that she suffered from intermittent bouts of depression. She acknowledged that her unusual behaviour, unguarded statements to colleagues, and short-term lapses in memory were connected to her mental health issues. This was the first time she had raised her depression with her employer. Her appeal was unsuccessful.
The Employment Tribunal
Mrs Baldeh brought a claim for discrimination arising from disability under section 15 Equality Act 2010. As a reminder, for discrimination under this section to be established, the employer must have had the requisite knowledge of disability at the time it treats the employee unfavourably. In other words, CHADD could not have been found liable if they did not know, and could not reasonably have been expected to know, that Mrs Baldeh had a disability (i.e. her depression) at that time.
The tribunal accepted that Mrs Baldeh’s depression amounted to a disability. The tribunal found that, although CHADD was made aware of her depression during the appeal hearing, they had no actual or constructive knowledge of the disability at the time of the decision to dismiss. It also found that there was no evidence that Mrs Baldeh’s behaviour towards her colleagues “arose in consequence of” her disability, that there were other reasons for her dismissal, and that her dismissal, even if it was unfavourable treatment because of something arising in consequence of Mrs Baldeh’s disability, was objectively justified.
In contrast, the EAT allowed Mrs Baldeh’s appeal and took issue with each stage of the tribunal’s reasoning. The EAT held that the tribunal had erred in its finding that CHADD did not know about Mrs Baldeh’s disability when it reached the decision to dismiss her, without also making a finding as to whether the employer gained actual or constructive knowledge of her disability by the time it rejected her appeal against dismissal.
On the facts, Mrs Baldeh’s complaint of unfavourable treatment in her dismissal had to be taken as referring both to CHADD’s initial decision to dismiss and to its subsequent rejection of her appeal against dismissal. CHADD’s knowledge at that stage of the disciplinary proceedings was therefore relevant and should have been considered by the tribunal. In addition, it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment - the fact that there may have been other reasons for B’s dismissal was not an answer to the claim. The EAT therefore remitted the case to a fresh tribunal for consideration.
Significance for Employers
The key point is the EAT’s comment that an appeal is an integral part of the decision to dismiss and employers should take into account any further evidence or knowledge that comes to light after the initial decision to dismiss. Effectively, in this case, the unfavourable treatment became a continuing act through the disciplinary process.
As a result, when considering whether the employer had knowledge (actual or constructive) of the claimant’s disability, it is relevant to consider what it knew or ought to have known right up to the point at which it decides the outcome of any appeal.
Employees should not therefore be penalised, nor should their evidence be ignored, just because they feel unable or unwilling to mention their disability or its symptoms until the appeal hearing.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2019