Insights overview

Employer’s knowledge of employee’s disability at the time of her appeal was relevant

Mrs Baldeh was a support worker who was dismissed at the end of her 6 month probation period. Various concerns had been raised about her performance – including two incidents of breaching data protection, failing to consult with senior staff and her communication with both colleagues and service users – and following the probation review meeting, the Housing Association made the decision to terminate her employment.

Mrs Baldeh appealed against the decision but made no mention of any kind of depression or disability, however, at the appeal hearing, Mrs Baldeh did raise this. Mrs Baldeh referred to having seen the same pattern of behaviour before with her mental health and could say things which were unguarded. She told the appeal chair that she had had a breakdown in the past and knew the signals. Despite this, Mrs Baldeh’s appeal was subsequently rejected and the decision to dismiss stood.

Mrs Baldeh subsequently brought a claim for discrimination arising from her disability. The Employment Tribunal (ET) rejected this claim, on the basis that the Housing Association did not know and could not reasonably have known that Mrs Baldeh was disabled at the time of the dismissal. The ET found that there were another four reasons, excluding Ms Baldeh’s communication with colleagues, for her dismissal. The Tribunal concluded that the dismissal was a proportionate means of achieving a legitimate aim – ensuring that it cared for vulnerable young people and for the staff to maintain high professional standards.

Mrs Baldeh appealed to the Employment Appeal Tribunal, which found a number of errors in the ET’s assessment. While the Housing Association did not know about Mrs Baldeh’s disability at the time of her dismissal, it was certainly arguable that they could reasonably be expected to know that she had a disability before the rejection of her appeal. Mrs Baldeh provided evidence in her appeal hearing that her condition caused the relevant behaviour – she explained that she would respond aggressively to others while suffering a depressive episode, that her short term memory was also affected (relevant to the loss of private data by Mrs Baldeh, which the Housing Association raised as a performance concern). The EAT made clear that in a claim for discrimination arising from a disability it was sufficient for the “something arising from” the disability to have had a significant influence in causing the unfavourable treatment, and confirmed that it does not have to be the sole or principal cause of the unfavourable treatment. The four other reasons for dismissal are relevant to the question of compensation only.

The EAT held that the ET failed to properly consider the justification defence – whether Mrs Baldeh’s dismissal was a proportionate means of achieving a legitimate aim. The EAT found that no attempt had been made to balance the prejudice to Mrs Baldeh of losing her job for something potentially arising out of her disability against the need to achieve the legitimate aim.

The case has been remitted to the ET to determine the discrimination claim.