When considering whether a person has been discriminated against because of “something” arising from a disability, the Employment Appeal Tribunal (EAT) held in Baldeh v Churches Housing Association of Dudley & District Ltd that the “something” just has to have significant influence in causing the unfavourable treatment, as opposed to constituting the sole or principal cause.
Ms Baldeh was engaged as a support worker on six months’ probation in December 2014. A number of concerns were raised about her performance over the first few months of her employment. At the end of May 2015 she was invited by letter to a probationary review meeting which set out some of these concerns such as lending money to a service user without authorisation, aggression towards her colleagues and breaching data protection. She was dismissed with effect from 18 June.
At the appeal hearing, Ms Baldeh mentioned for the first time that her behaviour could be “unusual” because of issues with her mental health. For instance, saying things that were “unguarded”. However, the appeal was dismissed and Ms Baldeh claimed disability discrimination under section 15 of the Equality Act.
Section 15(1) states that (a) it is discrimination to treat a disabled person less favourably “because of something arising in consequence of” that person’s disability.; and (b) the treatment is not “a proportionate means of achieving a legitimate aim”.
The tribunal dismissed her claim on the basis that the housing association could not reasonably have been expected to know that she was disabled at the time of her dismissal, as she had not provided any evidence to show that her behaviour towards her colleagues arose “in consequence of” her disability.
In any event, there were other reasons for her dismissal (set out in the May letter) which, in and of themselves, were sufficient. The dismissal was also justified under section 15(1)(b), the legitimate aim being to ensure that the association cared for vulnerable young people and for their staff who worked within a pressured environment and sought to maintain high professional standards and team work.
Upholding Ms Baldeh’s appeal, the EAT found a number of errors in the tribunal’s reasoning. Firstly although the housing association did not know about her disability when they dismissed her, she had mentioned it during her appeal hearing, which was integral to the overall decision to dismiss. As such, her employer may have acquired actual or constructive knowledge of her disability before rejecting her appeal which formed part of the unfavourable treatment of which she was complaining.
Secondly, the tribunal was wrong to say that there was no evidence that the way Ms Baldeh communicated with colleagues had anything to do with her disability, as she herself had described how it caused her to respond aggressively while suffering a depressive episode. She had also said that her disability affected her short-term memory which might explain the loss of private data belonging to clients.
Thirdly, it was not enough for the tribunal to say that, as there were other reasons for her dismissal, that was the end of the matter. Instead it should have considered whether the “something” (in this case inadequate communication with colleagues) had had a “significant influence” in causing the relevant unfavourable treatment. It did not have to be the sole or principal cause.
Fourthly, the tribunal failed to consider the section 15(1)(b) defence properly. In particular, whether dismissal was a proportionate response. As such, they should have balanced the prejudice to Ms Baldeh of losing her job for something potentially arising out of her disability against the need for the employer to achieve a legitimate aim.
The EAT therefore remitted the case to a new tribunal.
This case is a timely reminder that:
- The timeframe within which an employer may become aware that an employee has a disability encompasses the whole of the employment relationship - up to and including an appeal process.
- The scope of section 15 is very broad – the “something” that is connected with an employee’s disability need not be the only reason for any alleged unfavourable treatment, as long as it is a significant reason.
- Knowledge of disability is a tricky question. Tribunals do not expect perfection – it is what the employer reasonably could be expected to know (see for example Donelien v Liberata UK Ltd in weekly LELR 565), An employer would be foolish to simply ignore behaviour that is out of character.