The recent Employment Appeal Tribunal decision in Baldeh – Guidance for employers to avoid dismissals ending badly.
a ‘material influence’ enough for a successful disability
discrimination claim on grounds of unfavourable treatment when
considered in conjunction with non-discriminatory grounds?
Is knowledge of a disability at appeal stage relevant to a claim made solely in respect of the original decision to dismiss?
Yes and yes, held the Employment Appeals Tribunal in Baldeh v Churches Housing Association of Dudley and District Limited.
Claimant was employed as a Support Worker by the Respondent, a housing
association. The Claimant failed to act in accordance with the
Respondent’s policies and procedures during her probation period,
- Lending money to a service user without authorisation;
- Using inappropriate tones when texting a service user;
- Breaching data protection regarding confidentiality of service users;
- Communicating inappropriately with colleagues and management;
- Failing to consult with senior staff when instructed to do so.
a result of the above failings, the Claimant was dismissed following a
failure to make satisfactory progress at the end of her six-month
probationary period. At the time of dismissal, the Respondent had no
knowledge that the Claimant was suffering from any disability.
many employers and HR staff, the decision to dismiss would seem to be
entirely reasonable, fair and free from any legal risk given the
employee’s lack of service and absence of discriminatory grounds.
Claimant appealed the decision to dismiss her and an appeal hearing was
held. At the appeal hearing, the Claimant disclosed that she suffered
from depression and, when suffering from a depressive episode, says
things that are unguarded. The appeal was dismissed by the Respondent
and the original dismissal stood.
The Claimant then brought claims
in the Employment Tribunal for unfair dismissal and discrimination
arising from disability, relying on depression as a disability.
The Employment Tribunal in the first instance dismissed the Claimant’s claims, holding:
- The Respondent had no knowledge of the disability at the time of the dismissal;
- There was no evidence that the Claimant’s behaviour towards her colleagues ‘arose in consequence of her disability’;
- There were other reasons for dismissal which were sufficient;
- The dismissal was justified.
The Respondent undoubtedly sighed with relief, until the appeal judgment.
Employment Appeals Tribunal Decision
The EAT overturned the ET’s original decision.
EAT held that, whilst there were other grounds for dismissal which may
not have been influenced by the Claimant’s disability, a ‘material
influence’ arising from disability is sufficient to support a
discrimination claim. As such, the employee’s aggressive behaviour,
caused by her depression, ought to have been considered.
addition, whilst the unfavourable treatment related to the initial
decision to dismiss the Claimant, the Respondent’s knowledge at the time
of the appeal hearing was relevant to this decision and required
The case was remitted for a fresh ET to consider.
The above case highlights a number of key considerations for employers and HR professionals, being:
The appeal process must be carried out thoroughly, with any new evidence or risk being appropriately considered;
presence of other, non-discriminatory grounds, for dismissal will not
defeat a disability discrimination claim (however compensation may be
reduced where the tribunal holds that the dismissal would have occurred
in any event).
The ET must consider cases with reference to
fairness to a litigant in person. Where either party is unrepresented,
the pleadings of the case may require interpretation from the ET.
health is a hot topic of conversation and employers must be equipped to
recognise and address employees suffering from poor mental health.