Last chance saloon: employers can be liable even if only aware of an employee’s disability at a dismissal appeal hearing

Insights - 31/05/2019

Employers sometimes only discover that an employee has a disability at a disciplinary or even appeal hearing.  This is most common with mental health issues where employees are worried any perceived stigma if for example, they suffer from depression.

Employers are often unsure about how to deal with such a late disclosure; particularly if an employee says that her disability led to the alleged misconduct.

This was the issue in the recent case of Baldeh v Churches Association of Dudley & District Ltd (CADD).  B, a Support Worker, was dismissed at the end of her six month probationary period following various discussions about her performance. Allegations raised included B lending money to a service user, a complaint by a service user about the tone of a text message, breaching data protection by failing to maintain confidentiality and her relations with colleagues.

B appealed against her dismissal. At the appeal hearing she informed her employer that she was suffering from depression and could respond aggressively to others while suffering a depressive episode. She also said it could affect her short term memory.  The appeal outcome was to uphold the decision to dismiss.

The EAT held that an appeal decision is part of the overall decision and that the employer knew or ought reasonably to have known that B had a disability before it rejected her appeal.  Not only was there B’s evidence at the hearing but the letter from the chair of the appeal referred to information provided by B about her mental health during the appeal.

B’s claim was that her employer had dismissed her because of something arising in consequence of her disability and that this discriminatory treatment was not justified.

The ET said that there was no evidence that her behaviour was anything other than a personality trait.  This was rejected by the EAT ‘as just not right’ and it criticised the ET for failing to take account of evidence that the depression may have caused some of the behaviours for which B had been dismissed. Significantly it held that it is only necessary for this behaviour to have a ‘material influence’ on the decision to dismiss B. It did not need to be ‘the sole or principal cause’.

Points for employers

  • Prevention is better than cure. Having and actively implementing a wellbeing policy stating that support will be given to employees suffering from mental impairment and a culture where such issues can be discussed without fear of repercussions, will encourage employees to speak more frankly about mental health issues.
  • Ignorance may not be a defence. You are aware of the disability if you know about it or should reasonably be expected to know e.g. if an HR Officer knows about it then it will be difficult for the employer to deny knowledge.
  • Be prepared to suspend any disciplinary / appeal hearing and obtain medical advice where there is evidence that the employee’s behaviour is linked to a disability. In this case the EAT referred to B’s evidence at the hearing that she could be aggressive and also that due to her short term memory loss, she had forgotten to put away sensitive documents both of which were linked to her medical treatment and relevant to allegations against her.

The employee’s evidence should not be ignored because it is raised very late in the proceedings; there may be a good reason for this.

Other articles from May's newsletter

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