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Did Disability Have a "Material Influence" on Decision to Dismiss?

on Friday, 17 May 2019.

A recent case, Baldeh v Churches Housing Associate of Dudley and District Ltd highlights the risks that an employer needs to consider when dismissing someone who is classified as disabled under the Equality Act 2010.

This case highlights that when considering claims of discrimination arising from disability,  the question to ask is whether the disability had a 'material influence' on the decision to dismiss, irrespective of whether there were also other reasons for the dismissal.

Facts

Mrs Baldeh was a housing support worker. During her probationary period, several complaints were raised about her conduct and discussed with her, including (but not limited to) complaints about the way she communicated with her colleagues and managers, a complaint from a customer about the tone of a text message which she sent them and two breaches of data protection regulations by not keeping information about the service user confidential. The Housing Association dismissed Mrs Baldeh at the end of her probationary period, and Mrs Baldeh appealed her dismissal. During the appeal meeting, Mrs Baldeh informed her employers, for the first time, that she suffered from depression, and claimed it could impact her behaviour towards others and cause short term memory loss. The Housing Association rejected her appeal and she subsequently brought a claim for disability discrimination.

The Employment Tribunal ('ET') dismissed Mrs Baldeh's claim, on the grounds that the Housing Association did not have knowledge of Mrs Baldeh's depression at time she was dismissed; there was no evidence to link her depression to the way in which she spoke to her colleagues; and additionally that there were other reasons which were sufficient to lead to her dismissal. The ET also considered that the Housing Association worked with vulnerable people, meaning that a certain standard is required of employees and the dismissal could therefore be justified as a legitimate aim. Mrs Baldeh appealed the decision.

Employment Appeal Tribunal ('EAT') 

The EAT disagreed with the ET and the case was remitted to a different ET to be reheard. The EAT concluded that, although the Housing Association did not have knowledge of the disability at the time of her dismissal, there was actual or constructive knowledge of it before the rejection of her appeal, and the rejection of the appeal formed part of the unfavourable discriminatory treatment of which she was complaining. The EAT also considered that it was wrong to conclude there was no evidence of a causal link between Mrs Baldeh's disability and the way she spoke to her colleagues, particularly as she had provided evidence on the point and the Housing Association had made a reference to it when they rejected her appeal.

With regards to the ET's reasoning that there were other reasons for the dismissal beyond her communication style, the EAT disagreed with the ET and stated that the 'something arising in consequence of her disability' (her communication) only has to have a 'significant influence' in causing the unfavourable treatment (dismissal). It does not have to be the only reason or even, arguably, the main reason for the unfavourable treatment.  Finally, the EAT said that although the ET had considered the legitimate aim, it had omitted the question of whether dismissal was a proportionate means of achieving that legitimate aim.

Best Practice

This case highlights the importance of being alert to issues relating to disability when considering the reasons for and reasonableness of an employee's behaviour. This can be even more difficult when employees are suffering from mental health conditions, rather than physical ones. In this case the employer did not know until the appeal hearing that the employee was suffering from depression, however this was enough for the EAT to conclude that this might have still had a material influence on the decision to dismiss. It is strongly advisable that the lines of communication are kept open with employees, particularly following any behavioural changes, in addition to making employees aware of the help that might be available to them if they are suffering from health issues in the workplace.


For more information please contact Katie Hurst in our Employment Law team on 0121 227 3751, or complete the form below. 

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