Baldeh vs Churches Housing Association of Dudley and District Ltd (UKEAT/0290/19/JOJ)

Summary
In this case, the Employment Appeal Tribunal held that a dismissal could be discriminatory, even when an employer did not know about an employee’s disability at the time of dismissal, but was told at the appeal hearing.

Background
Mrs Baldeh was employed as a support worker for Churches Housing Association of Dudley and District Ltd (the employer). Mrs Baldeh was dismissed at the end of her six-month probationary period, following a disciplinary hearing, because of her performance and her rude behaviour towards her colleagues. She made no mention at this hearing or at any point during her brief employment of having a disability.

Mrs Baldeh appealed the decision on the basis that she suffered from depression, which affected her behaviour and caused short-term memory loss. She said that this caused her poor performance and conduct. In particular, she stated that she could respond aggressively to others while suffering from a depressive episode.

The employer upheld the decision to dismiss her on the basis that her actions warranted dismissal.

Tribunal claim
Mrs Baldeh brought a tribunal claim for “discrimination arising from disability”. She alleged that she had been subjected to unfavourable treatment (her dismissal) because of something arising from a disability (namely her behaviour and poor performance).

The tribunal held that the employer was not aware of the disability at the time the decision to dismiss was made and so there was no discrimination. Mrs Baldeh’s conduct was considered to be objectively poor and she would have been dismissed on the other grounds in any event.

Mrs Baldeh appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal
Mrs Baldeh won her appeal. The EAT explained that as the employer heard evidence from Mrs Baldeh at the appeal hearing that she was disabled, they had knowledge of her disability at the appeal meeting. They should, therefore, have explored this before upholding the dismissal.

The EAT also highlighted that while there were a number of dismissal grounds that had nothing to do with the disability, the fact that the conduct arising from the disability had a “material influence” on the decision to dismiss meant that there could be potential discrimination arising from the disability in this case.

The EAT sent the case back to a fresh employment tribunal for it to determine whether the rejection of Mrs Baldeh’s appeal amounted to disability discrimination, and if so, whether the dismissal was a proportionate means of achieving a legitimate aim.

Implications for employers
It’s frustrating when employees raise a potential disability at such a late stage. However, if new facts come out at the appeal meeting then these must be explored to see whether the decision to dismiss would have been the same had the employer been aware of these facts at the time or if it should be overturned.

The role of the appeal panel is not just to review the decision to dismiss but to consider any fresh evidence produced and not be afraid to postpone the hearing if they need more time to investigate.

If an employee raises the issue of a disability as a potential reason for their actions, then we recommend the employer obtains a medical report on the employee’s health condition and its potential impact on the employee in the workplace, including recommendations for potential adjustments. Yes, this will delay matters potentially by weeks, but the alternative is a potential claim.

Employees may be too embarrassed to mention a mental health condition with their employer at an earlier stage (before they have been dismissed) due to the negative connotations of suffering from depression that still exist in many workplaces.