The claimant appealed against the Employment Tribunal’s dismissal of her claim for disability discrimination.   The employee was held to be disabled by reason of depression and at the end of her six-month probationary period she was called to a review meeting.

There were six issues at this review meeting surrounding breaching professional boundaries, complaints and breaching data protection rules. After this meeting she was dismissed, as she had not made satisfactory progress, but the employer was not aware of her disability.  The claimant appealed the decision to dismiss and during the appeal she raised the issues surrounding her mental health.  This appeal was rejected and her dismissal stood.

The claimant brought a claim under Section 15 Equality Act 2010 for discrimination by virtue of her disability (the NI equivalent would be the Disability Discrimination Act 1995).

The issue was whether the respondents had known about the disability prior to the dismissal.  The EAT held that the ET had made an error in finding that the employer did not know about the employee’s disability before the actual dismissal as they knew before the rejection of the appeal.

The issues with the disability went further than this that rejection, thereby accounting for various things in the review meeting, such as the aggressive outbursts that the claimant had during work and her short-term memory loss which led to the data protection issue.  The EAT noted further errors in the ET’s decision, such as failing to ask whether the dismissal was for something arising in consequence of the disability and that the ET had failed to engage whether the dismissal was a proportionate means of achieving the legitimate aim.  For this reason, the EAT held that the outcome of the appeal was integral to the overall decision to dismiss and the tribunal should have considered it as part of the overall decision.

The EAT held that the Tribunal had erred in failing to consider the appeal and remitted the case back to a fresh ET to decide the case after taking into account what had happened at the appeal stage of the dismissal.

Practical Lessons: This decision demonstrates the level to which the Tribunal should take certain situations into consideration.  The EAT have made it very clear in this decision that if the employee refers to a disability in an appeal to a dismissal then it should be fully taken into account by the Tribunal as to whether there has been disability discrimination.

The judgment also points out that it may have also been a factor in the substantive decision made to dismiss, such as how the reaction and communication of the employee may have been attributed to the disability and the extent to which the employer should have taken this into account.  Therefore, decisions in an appeal should be cognisant of any fresh information, how it may explain previous behaviour and how the Tribunal may take it into account if proceedings are issued.
https://assets.publishing.service.gov.uk/media/5ccad96640f0b64c18b1339c/Mrs_B_Baldeh_v_Churches_Housing_Association_of_Dudley___District_Ltd_UKEAT_0290_18_JOJ.pdf