The law says it is discrimination for an employer to treat an employee unfavourably because of “something arising from” their disability. In Stott v Ralli Ltd, the Employment Appeal Tribunal (EAT) held that the employer could not have discriminated against their employee as they did not know, nor could they have been expected to know, that she was disabled.
Ms Stott started work as a personal injury paralegal on 9 October 2017. Despite training and guidance on how to write witness statements, compile schedules of loss and assess quantum, there were numerous errors in her work which had to be referred for corrections, sometimes more than once. In November, further concerns were raised with her about the standard of her work to which Ms Stott responded that she was having trouble sleeping. Although she was then given more straightforward administrative tasks, the concerns about her work persisted and she was dismissed on 8 January 2018.
After the dismissal meeting, Ms Stott sent an email headed “Grievance Procedure” in which she complained of discrimination, arguing that her performance at work was affected by “mental health issues” (anxiety and depression). She alleged that she had “sort of” made these known to the firm at interview and had disclosed her depression when she had told one of her supervising solicitors that she was not sleeping. Her grievance was unsuccessful.
She lodged a tribunal claim, arguing that her dismissal was an act of discrimination because of something arising in consequence of disability contrary to section 15 of the Equality Act 2010. The firm acknowledged that she had a mental impairment amounting to a disability at the relevant time, but that they were unaware of it prior to dismissing her.
Section 15 states that it is discrimination for a person (A) to treat someone else (B) unfavourably because of something arising in consequence of B’s disability; and A cannot show that the treatment was a proportionate means of achieving a legitimate aim. However, this does not apply if A did not know – and could not reasonably have been expected to know, that B had the disability.
Rejecting her claim, the tribunal held that Ms Stott was dismissed for her poor work performance. As she had not disclosed her impairment to her former employer at any point prior to her dismissal, they could not have known, nor could they have reasonably been expected to have known, that she had a disability. It followed that they could not have discriminated against her on that ground.
Even if that was not the case, the firm could show that it had a legitimate aim which was to maintain a high standard of accuracy in its dealings with clients and the courts. The approach taken by the firm – providing her with supervision, making efforts to correct her work, and ultimately dismissing her - was a proportionate means of achieving that legitimate aim.
The EAT agreed with Ms Stott that the tribunal had failed to address the question of whether her poor performance was “something arising from” the disability of anxiety and depression. Equally, however, it had made the finding that at the time of dismissal her employer was not aware that she had a disability.
Although the tribunal had also found that her employer was aware of her disability by the time it rejected her grievance, it was still entitled to conclude that they were not aware of it when she was dismissed, because the dismissal and grievance processes were separate. Conversely, although her employer had known about her disability by the time they decided the grievance, she had not claimed disability discrimination in relation to the grievance at the tribunal.
As the tribunal was also right to conclude that the employer had a justification defence, it had been correct to reject Ms Stott’s section 15 claim.