Knowledge of a disability
Friday 24th May 2019
The EAT held in Baldeh v Churches Housing Association of Dudley & District Ltd, that the ET should have considered whether CHADD had actual or constructive knowledge of a disability when it rejected Ms Baldeh’s appeal and not just whether it had knowledge at the time of dismissal.
Ms Baldeh was dismissed by CHADD at the end of her probationary period due to performance concerns and her behaviour towards her colleagues. During her appeal she explained that she had depression and that this influenced both her performance and her interactions with colleagues. The appeal was unsuccessful. Ms Baldeh brought a claim of disability discrimination claim.
The ET accepted that Ms Baldeh was disabled at the time of her dismissal. However, it held that CHADD had no knowledge of the depression and could not reasonably have been expected to know. In addition, the ET held that there was nothing to indicate that Ms Baldeh’s behaviour towards her colleagues was a consequence of her disability and there were also other reasons for her dismissal. Furthermore, had there been any unfavourable treatment, it was objectively justified.
The EAT allowed the appeal, identifying numerous errors in the ET’s reasoning. Most importantly, the ET had failed to consider whether CHADD had actual or constructive knowledge of disability when it rejected Ms Baldeh’s appeal. The unsuccessful appeal formed part of the unfavourable treatment about which she was complaining, and her depression was clearly raised during the appeal. The evidence given by Ms Baldeh about how her depression affected her should have been considered by the ET when it evaluated whether or not Ms Baldeh’s behaviour towards her colleagues arose as a consequence of her disability.
The EAT held that simply maintaining that there were other reasons for dismissal was not an answer to the claim. The “something arising in consequence” of the disability need only have “a material influence” on the unfavourable treatment and need not be the only reason for dismissal. Lastly, in considering the objective justification defence, the ET considered, albeit inadequately, whether CHADD had a legitimate aim, but failed to consider whether dismissal was a proportionate response.
The case was remitted to a new ET.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.