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29th April 2020

What if an employer becomes aware of a disability post termination?

29th April 2020

What if an employer becomes aware of a disability post termination?

Claire Merritt

Posted: 29th April 2020

T: 023 8048 2112

E: Email Me

Employers have to be alert to potential disabilities of employees, even if they become aware of a disability post termination. The case of Baldeh v Churches Housing Association of Dudley and District Ltd [2019] UKEAT/0290/18 illustrates this.

Disability post termination example

In this example, the employer only became aware of the employee’s disability post termination. We share the facts of the case, what happened at the Employment Tribunal and subsequently the Employment Appeals Tribunal.

Background

Mrs Baldeh was employed by a housing association which was responsible for providing housing to vulnerable young people. During her probationary period, various concerns were raised about her performance and she was dismissed following a probationary review meeting.

An appeal was then lodged by Mrs Baldeh. During the appeal, she raised that she had longstanding depression. The appeal was upheld and Mrs Baldeh was dismissed.

Employment Tribunal

At first instance, the Employment Tribunal dismissed Mrs Baldeh’s claim. Although it was agreed that the claimant had depression which amounted to a disability, it was not found that the respondent had knowledge of her disability at the time of dismissal. The evidence indicated that the employer only became aware of the disability post termination at the appeal hearing.

The Employment Tribunal also found that:

  • There was no evidence that Mrs Baldeh’s poor communication style was due to her disability. It could have simply been a personality trait.
  • Mrs Baldeh was dismissed for multiple reasons, and even if her poor communication style was related to her disability, the other reasons would have meant she would have been dismissed in any event.
  • The dismissal was justified as it had a legitimate aim in ensuring communication standards were met when working with vulnerable individuals.

Employment Appeals Tribunal

Mrs Baldeh appealed against these findings. Importantly, the Employment Appeals Tribunal held that the Tribunal should have contemplated whether the appeal decision was discriminatory and should have considered this as part of the overall decision to dismiss. Judge Shanks concluded that “the outcome of an appeal against a dismissal is, one can say, integral to the overall decision to dismiss”.

In respect of the other grounds, the EAT found as follows:

  • Mrs Baldeh had provided testimony that her communication was influenced by her disability. It was therefore incorrect to say that there was no evidence on this point.
  • That the communication issues did not need to be the sole or principal cause of Mrs Baldeh’s dismissal. It only needed a ‘significant influence’ in causing the relevant unfavourable treatment.
  • That the ET’s justification reasoning did not properly consider whether dismissal was a proportionate response.

Conclusion

The key message from this case for employers is to be mindful that if an employee brings up a disability in an appeal hearing, this needs to be looked at carefully. An appeal needs to consider this as well as the other information gathered in making the dismissal decision or the employer could find themselves faced with a disability discrimination claim. Despite Mrs Baldeh being within her probationary period, she was successful in bringing her claim as discrimination claims can be made at any stage of the employment relationship.

If you would like to discuss any potential discrimination related issues please contact a member of the Employment team.

This blog was co-written by Aleks Golat, Solicitor and Claire Merrit, Partner.

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Claire Merritt

Posted: 29th April 2020

T: 023 8048 2112

E: Email Me