Disability can be disclosed during an appeal process
In a recent case ¹, Ms Baldeh, a housing support worker, was dismissed by her employer, a housing association, at the end of a six month probationary period. There were five performance concerns about Ms Baldeh, one of which related to her communication skills.
In the appeal hearing, Ms Baldeh mentioned that she suffered from depression and that this sometimes caused her to behave unusually; to say things ‘unguarded; and to suffer short lapses in memory.
Ms Baldeh presented a tribunal claim for discrimination arising from disability under section 15 of the Equality Act 2010. At the subsequent tribunal hearing, the employment tribunal found that the employer had no actual or constructive knowledge of disability at the time of the decision to dismiss, and therefore there could be no section 15 discrimination claim. Under section 15 (2) of the Act, there can be no discrimination arising from disability where the employer did not, and could not have reasonably been expected to, know that the employee had a disability – i.e. actual or constructive knowledge.
The Employment Appeal Tribunal decided to allow an appeal by Ms Baldeh, with the case now remitted back to a fresh tribunal. The appeal was allowed on several grounds, but the most noteworthy finding was in relation to the fact Ms Baldeh had informed the employer at the appeal hearing that she was suffering from depression. The EAT disagreed with the tribunal’s decision, and it was decided that the outcome of an appeal against dismissal was in fact integral to the whole decision to dismiss. The EAT held that the tribunal should in fact have considered the appeal decision as part of the claim relating to dismissal, and decided whether the decision was discriminatory based on the actual knowledge of disability the employer had after the appeal hearing.
This decision reiterates the need for institutions to be alive to any indications of disability at any stage of a disciplinary or appeal process.
¹ Mrs B Baldeh v Churches Housing Association of Dudley & District Ltd [UKEAT/0290/18/JOJ]