Knowledge of disability and date of acquisition

Baldeh v Churches Housing Association

Knowledge of an employee’s disability could have been acquired during an appeal against dismissal.

Section 15 of the Equality Act prohibits discrimination arising from a person’s disability -. i.e. where a disabled person is treated unfavourably because of something arising in consequence of their disability. An employer has two lines of defence to such a claim: that the discrimination was a proportionate means of achieving a legitimate aim or that it didn’t know (and could not reasonably be expected to know) that the person had a disability.

Background

Mrs Baldeh was working as a support worker on six months’ probation. After various concerns had been raised about her performance and behaviour, she was called to a review meeting and her employment was terminated at the end of her probationary period. At her appeal hearing, she told her employer that she was suffering from depression which could have influenced her behaviour towards her colleagues and affected her short-term memory. Following the rejection of her appeal, she claimed disability-related discrimination under s. 15. A tribunal rejected her claim and she appealed.

EAT decision

The EAT allowed her appeal.

The tribunal had been wrong in three key respects:

  1. Although her employer didn’t know about Mrs Baldeh’s disability at the time it dismissed her, it may have acquired actual or constructive knowledge of it before the rejection of her appeal - which formed part of the unfavourable treatment of which she was complaining.
  2. The tribunal had failed to take account of evidence that her depression may have caused some of the behaviours for which she had been dismissed and had wrongly rejected the claim on the basis that the employer had adequate grounds for dismissal without taking account of those behaviours. The correct test was not whether there were other causes for dismissal, but whether the matters ‘arising in consequence’ of the disability had a ‘material influence’ on the decision to dismiss.
  3. The tribunal hadn’t dealt with the justification defence properly. It held that the employer was pursuing a legitimate aim but hadn’t looked at whether the dismissal was a proportionate means of achieving that aim, i.e. balancing the prejudice of Mrs Baldeh losing her job, against the need to achieve the legitimate aim.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0290_18_1103.html

Comment

Some points to note:

  • The timeframe within which you may become aware that an employee has a disability encompasses the whole of the employment relationship - up to and including an appeal process.
  • The scope of s. 15 is very broad – the ‘something’ that is connected with an employee’s disability need not be the only reason for any alleged unfavourable treatment, as long as it’s a significant reason.
  • Knowledge of disability is a tricky question. Tribunals do not expect perfection – it is what you reasonably could be expected to know (see for example Donelien v Liberata UK Ltd.If you’re faced with behaviour that is pout of character, don’t simply ignore it. This can be compared with cases of pregnancy discrimination where knowledge of an employee’s pregnancy at the time of dismissal is key, rather than what she might say on appeal (Really Easy Car Credit Ltd v Thompson)