A recent decision of the Employment Appeal Tribunal (EAT) dismissed a complaint of discrimination on the basis of disability when the employer only knew of the disability after the employee was dismissed.
The applicant worked as a paralegal in a law firm, employed since October 2017.
In November 2017, the claimant discussed errors in her work with a lawyer she worked with. The paralegal explained to the lawyer that she was having trouble sleeping, but no further information was provided. The lawyer saw this as just a passing comment.
Following further concerns about the poor performance, the Plaintiff was subsequently terminated by the Company during her probationary period on January 8, 2018. Following her termination, the Plaintiff sent a letter of complaint to the Company on January 9, 2018, claiming that there was no evidence of poor performance, and that his dismissal was due to his disability.
At the January 16, 2018 grievance meeting, the plaintiff confirmed that her disabilities were mental health issues, anxiety, depression and heart disease. The claimant suggested that her performance was affected by her mental health and that she had “kind of mentioned her disability” during her job interview. The Claimant also suggested that previous comments to firm counsel regarding her sleep problems amounted to disclosure of her disabilities. The grievance was dismissed, as was the appeal of a grievance.
Subsequently, the paralegal brought a number of complaints of discrimination on the basis of disability to an employment tribunal.
Discrimination resulting from disability can be brought under section 15 of the Equality Act 2010 (EA 2010). This happens when both:
- The employer treats an employee unfavorably because of something resulting from the employee’s disability.
- The employer cannot demonstrate that the processing is a proportionate means of achieving a legitimate aim.
An employer who is unaware but should have recently been aware of the existence of the disability has what is called “constructive knowledge”.
While admitting that the Applicant’s anxiety and depression was a mental health issue that met the definition of disability in the 2010 EA, the Labor Court found that the employer could not reasonably have known, or should have known. namely, about the disability at the time of dismissal and thus rejected the claims of the claimant.
The complainant appealed to the EAT. While the EAT ruled that the court failed to consider whether the plaintiff’s poor performance was due to a disability, it failed on its other grounds of appeal.
The EAT ruled that the court was correct in concluding that the employer did not have actual or suspected knowledge of the claimant’s disability when the employer dismissed the claimant. The claimant did not argue that the results of the grievance or the grievance appeals were in themselves discriminatory. Therefore, the EAT ruled that it was not just a matter of considering what the company knew after the termination and during the grievance process, as this was irrelevant to its claim.
This distinguishes between discriminatory termination complaints and the discriminatory appeal process itself: these are different issues. This contrasts with the unfair dismissal claims under Section 19 (Indirect Discrimination) EA 2010, where the whole process is seen as part of the fairness issue.
Further, the EAT dismissed the Applicant’s other ground of appeal, confirming that the employer had proportionate means to achieve a legitimate objective (the “show cause defense”). The firm’s legitimate aim was to “maintain a high standard and accuracy in English in written communication with clients and with the courts, as one would expect from a professional law firm.” The complainant’s treatment “in terms of supervision, efforts to correct her work and final dismissal” was proportionate to the achievement of the legitimate aim.
It should be noted that, if the point concerning the evolution of the employer’s knowledge during the appeal procedure had initially been raised before the Labor Court, the appeal could have been upheld. This can be seen in a previous case,
Baldeh v Churches Housing Association of Dudley & District Limited, where the EAT ruled that the court should have considered it to be a grievance that the appeal against the dismissal itself was discriminatory.
Overall, this disability discrimination case emphasizes that employers should take all relevant factors into account during the dismissal process. This includes consideration of new knowledge, even if it is received during the grievance process or the termination appeal. When disability is raised as an issue after termination, employers are better advised to conduct a reasonable investigation of employee conditions as part of the process. This could include asking the applicant to provide medical evidence from the GP.
Employers should also mitigate risk by having a culture that is open and tolerant of neurodiversity and hidden disabilities. It should be noted that the firm in this case was criticized for its recruitment policy. Having HR processes that encourage individuals to feel comfortable informing the employer at an early stage of their employment will ensure that the employer has full knowledge of the issues and circumstances, thus minimizing the risk of claims for discrimination based on disability.
Finally, it should be noted that, even if an employer knows (or should have known) of a disability, it can still demonstrate that the processing was a proportionate means of achieving a legitimate aim. However, it is important to have solid and well documented business reasons for the decisions taken and to be able to show that there was no less discriminatory way to achieve the same goal. If the employer was aware of the disability and reasonable adjustments were not made to help the employer overcome the barriers arising from the disability, it will likely be difficult to demonstrate that discriminatory treatment is justified.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.