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This article was published on July 3rd, 2019
Discrimination arising from disability happens when an employer treats an employee unfavourably because of something that arises because of their disability (and which cannot be objectively justified). However, an employer will not be liable if they didn’t know the employee was disabled and could not reasonably have been expected to know.
In Baldeh v Churches Housing Association, the employee was dismissed at the end of her probationary period due to concerns about her performance and behaviour. She appealed. At the appeal hearing she said her behaviour was caused by depression. Her dismissal was upheld by the employer and she brought a claim for discrimination arising from disability.
The employment tribunal rejected her claim. Among other things, they said the employer did not know about the disability at the time of dismissal. Therefore, the dismissal could not be discrimination arising from disability. The Employment Appeal Tribunal disagreed. The outcome of an appeal against dismissal is an integral part of the overall decision to dismiss. The employer did know about the disability at the time of dismissal if they were told about it at the appeal stage. The case was sent back to a new employment tribunal to consider afresh.
Employers should ensure that information on disability which emerges at any appeal stage is dealt with properly. The appeal process might become longer and more drawn out as a result. However, if the alternative might be tribunal proceedings, it is worth taking the extra time.