Knowing what you should disclose to an employer can sometimes be confusing, but what happens if an employee does not inform their employer about their disability until the appeal hearing against dismissal?
In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd [2019], this issue was discussed. The Employment Appeal Tribunal (EAT) held that when considering a claim of dismissal because of discrimination arising from disability, it is necessary to consider whether the employer had actual or constructive knowledge of the employee’s disability at the time of the appeal against dismissal, not just at the time the decision was taken to dismiss.
Read more: Unfair Dismissal: What Are My Rights? and Howells Solicitors’ Guide to Discrimination in the Workplace: Know Your Rights
The Facts of the Case
The facts of the case are as follows:
- Mrs Baldeh (claimant) was a support worker who was dismissed by her employer, Churches Housing Association, at the end of her 6-month probationary period.
- The reason for dismissal was due to a number of issues being raised and discussed with the claimant surrounding her performance at work.
- The issues raised included:
- Breach of professional boundaries by loaning money to a service user.
- A complaint by a service user about the tone of a text message she had sent.
- Failure to maintain confidentiality of service user information.
- Failure to consult with senior staff regarding an instruction that had been left with her.
- Communication style and how she related to colleagues and her manager.
The claimant appealed against her dismissal and at the appeal hearing informed her employer’s that she suffered from depression. She explained that her depression caused her to behave unusually, for example she would say things “unguarded”, and suffer short-term lapses in memory.
The Employment Tribunal’s Decision
The Tribunal held that the claimant’s depression amounted to a disability under section 15 of the Equality Act 2010. However, the Tribunal held that the dismissal by her employer was justified, that the legitimate aim of dismissal was to maintain standards required of individuals working with vulnerable people and maintaining a workforce who could work amicably together.
The claimant appealed against the Tribunal’s decision.
The Employment Appeal Tribunal (EAT) Decision
The EAT held that it was arguable whether there was actual or constructive knowledge of the claimant’s disability before the claimant’s appeal against dismissal was rejected and that the outcome of an appeal against dismissal is “integral to the overall decision to dismiss”. Therefore, the Tribunal should have considered the appeal decision as part of the claim and decided whether the appeal decision amounted to discrimination.
The EAT also held that the Tribunal had taken the wrong approach when stating that the employer’s concern about the claimant’s ability to communicate was only one of five reasons for her dismissal and that they would have dismissed her as the other four reasons would have meant the claimant was unsuitable for further employment.
The EAT stated that the unfavourable treatment (communication issues as a result of her disability) does not have to be the sole or principal cause of that treatment. Although the employer stated there were four other reasons for the claimant being dismissed. The EAT held that this may be a relevant question of compensation if the claimant would have been dismissed in any event.
To conclude, the EAT held that where an employer did not know about an employee’s disability (depression) at the time of dismissal, but was told about it at the appeal hearing, the dismissal could still amount to discrimination under section 15 of the Equality Act 2010.
Employers, Be Aware of Mental Health Disclosure Laws
Therefore, employers should be reminded that an appeal against dismissal forms part of the dismissal process. If any new information comes to light at the appeal stage, then the new information should be taken into account when deciding whether to reject or accept an appeal made by an employee against dismissal.
An employee should not be penalised just because they felt unable or unwilling to mention their disability or its symptoms until the appeal hearing.
If you are an employer who is unsure what to do regarding a similar situation involving an employee, or an employee seeking guidance on the disclosure of health information to an employer, please get in touch to speak to our professional, approachable employment law team who will be happy to help and advise you.
