What must employers consider if an employee claims to have a disability for the first time at a dismissal appeal meeting?

The case of Baldeh v. Churches Housing Association of Dudley and District Ltd provides useful guidance on how to deal with new allegations of a disability which are only raised at the appeal meeting and how that should impact on the final decision. Employers need to be aware that the dismissal appeal hearing is still part of the dismissal process itself.

Background

Mrs Baldeh was dismissed within her probationary period for a number of performance and conduct related issues. These included using an inappropriate tone in communications, breaching confidentiality and overstepping boundaries when working with a user.

In her disciplinary hearing, she did not explain that she was disabled and so her dismissal was made on the basis that she had simply not performed her job to the required standard within her first six months.

However, at her dismissal appeal meeting, she explained that she suffered from depression, which affected her behaviour and caused short term memory loss. She said that this caused her poor performance and conduct. The employer, though, still concluded that her actions warranted dismissal and so proceeded with this outcome.

Legal claims

Mrs Baldeh brought a claim under section 15 Equality Act 2010, for “discrimination arising from disability”. She alleged that she had been subjected to unfavourable treatment (her dismissal) because of something arising from a disability (namely her behaviour and poor performance).

The employment tribunal at first instance held that the employer was not aware of the disability at the time the decision to dismiss was made and so there was no discrimination. Mrs Baldeh’s conduct was considered to be objectively poor and she would have been dismissed on the other grounds in any event.

However, on appeal, the Employment Appeal Tribunal (EAT) overruled this decision and remitted this to another tribunal for reconsideration. The EAT explained that as the employer heard evidence from Mrs Baldeh at the appeal hearing that she was disabled, they had actual or at least “constructive” knowledge of her disability at the appeal meeting. They should, therefore, have explored this before upholding the dismissal.

The EAT also highlighted that while there were a number of dismissal grounds that were entirely unrelated to the disability, it did not have to be the “sole” or “principal” reason for the unfavourable treatment (the dismissal). The fact that the conduct arising from the disability had a “material influence” on the decision to dismiss meant that there could be a potential discrimination arising from disability claim in this case.

What this means for businesses

In light of this case, employers need to be mindful of using an appeal to simply review the previous decision to dismiss. If new facts come out at the appeal meeting then these must be explored to see whether the decision to dismiss would have been the same had the employer been aware of these facts at the time or if it should be overturned.

In perhaps most situations, the dismissed employee will leave the business, that is their employment will actually be terminated following the dismissal decision. If re-instated or re-engaged at appeal, then the employment will continue and the employee will receive back pay, “gap pay” for the period they were dismissed. However, in other situations, the employee might be retained as an employee in this gap pending the outcome of the appeal meeting. In this latter situation, the risk is even greater that new facts could come to light to reconsider the dismissal decision.

Employers should follow the Acas Code of Practice on Disciplinary and Grievance Procedures along with any of their own company policies when dealing with a dismissal. Managers should be trained to appreciate their role when undertaking an appeal. They must consider fresh evidence produced at the appeal meeting and they should not feel afraid to postpone the meetings if they need more time to investigate.

If an employee raises the issue of a disability as a potential reason for their actions then it will be sensible to refer the employee to an occupational health therapist.

Employees may be be too embarrassed to mention a mental health condition with their employer at an earlier stage (before they have been dismissed) due to the negative connotations of suffering from depression that still exist in many workplaces. Employers need to explore whether this fresh information would have affected the decision to dismiss and make adjustments to the procedure if necessary.

If you would like to discuss an issue with a disciplinary or dismissal procedure then please contact Tom Pimenta or the Employment Group by email at [email protected].