Disability and dismissal

Posted Friday 21st June 2019

The recent case of Baldeh v Churches Housing Association of Dudley and District Ltd reminds employers that they need to take into account an employee’s disability, at all stages of the dismissal process, even if they are only made aware of the disability at the appeal stage after having made the decision to dismiss.

In Baldeh, the claimant was dismissed at the end of her six month probation period following concerns about her performance and behaviour. On appealing the decision to dismiss, the claimant claimed that her behaviour was attributable to her depression (about which the employer was previously unaware). The employer confirmed its decision to dismiss on appeal and the claimant brought a claim for disability-related discrimination.

The employment tribunal agreed that depression constituted a disability but dismissed the claim in part because the employer had been unaware of the claimant’s depression when it first decided to dismiss.

On appeal, the EAT found that the tribunal should have taken into account the fact that the employer was subsequently made aware of the claimant’s depression, before it rejected her appeal against the decision to dismiss. So, in assessing the employer’s knowledge of an employee’s disability, the clock does not stop when the employer takes a decision to dismiss, it also extends to where such knowledge is only gained at the appeal stage.

The EAT also questioned whether dismissal was a proportionate response and sent the case back to the employment tribunal for a fresh hearing.

It is not uncommon for employees to allege disability only after they have been dismissed or are threatened with dismissal. This case highlights two key points for employers facing this situation:

1. If, during an appeal against a decision to dismiss, you are made aware of an employee’s disability, consider your decision carefully and treat the issue as you would with any instance of disability (i.e. consider alternatives to dismissal, including reasonable adjustments and to what extend the disability could explain the conduct/capability issues you have raised).
2. The fact that you have good reason to dismiss an employee will not necessarily defeat a discrimination claim once you are on notice of a disability, if you then fail to consider reasonable adjustments and the extent to which the employee’s disability could explain the conduct/capability issue.

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This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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