You are hearing the appeal of an employee with less than two years’ service dismissed on the grounds of admitted poor conduct. What can possibly go wrong? Certainly not the seeming afterthought on the employee’s part, not mentioned at the dismissal stage, that her conduct might in part be explained by a depressive condition of which you had no knowledge. Besides, some of the conduct cannot be caused by the alleged disability and in the circumstances (the end of probation) that would be enough for you to act upon anyway. As we say, nothing can go wrong.
Except Baldeh – v – Churches Housing Association of Dudley and District, that is. Baldeh was dismissed at the end of her probationary period for a list of shortcomings including breaches of confidentiality, an aggressive and dictatorial tone in internal and external communications and breach of professional boundaries in her dealings with service users. In her appeal meeting Baldeh admitted that she could sometimes be forgetful (which might explain the data breach) and that when feeling particularly down she could say things which might be seen as unguarded or aggressive. She had had a mental breakdown in the past, she said, and recognised the signals.
However, that health issue was wholly new to the Association – Baldeh had not disclosed it prior to her dismissal, in her own defence when her dismissal was proposed or in her written grounds of appeal, or brought any objective medical evidence of it to the appeal hearing. It was just an assertion and easily heard as a retrospective attempt to explain unattractive behaviours as illness when they could just as easily be a function of her personality or attitude to her colleagues. The Association could surely feel reasonably comfortable in disregarding it, and it did so.
Baldeh claimed disability discrimination under s15 Equality Act. This says that where the employer acts to the employee’s detriment on the grounds of something arising out of a disability, that act will be discriminatory unless either it was justified or the employer was unaware of the disability. Despite her success in hiding it from the Association, her depression was found serious enough to constitute a statutory disability. The Employment Tribunal found that the Association could not be liable for a dismissal based on objective and admitted poor conduct, even if this arose in some partial way from a disability, if the employer did not know she had one.
The Employment Appeal Tribunal shot a number of holes in the ET’s reasoning and in the process laid down some useful pointers for employers facing this sort of surprise ending to the dismissal process:
- Though Baldeh had made a claim only in respect of the dismissal, when it was agreed that the Association had no knowledge of her disability, that did not exclude from consideration the appeal stage, when it did. The EAT considered that the appeal was an integral part of the overall dismissal process. Therefore merely because the dismissal could not be discriminatory because of the Association’s ignorance of Baldeh’s condition, that did not mean that the same was necessarily true of the rejection of the appeal. [One unintended lesson from this is to consider the wisdom of providing an avenue of appeal for employees who fail their probationary period. Had the Association refused this option, Baldeh could have had no legal complaint because of her short service.]
- It was unimportant that Baldeh had referred to her disability only relatively casually and had not relied upon it earlier. She was unrepresented and the EAT could understand her not wishing to admit depression if she could help it. That seeming throw-away reference was still enough to put the Association on notice of the issue.
- However, the Association was not then bound to take it as read that Baldeh was disabled. Since there was at least the possibility that her conduct could have been caused in part by the mental health complaint she referred to, it should at least have adjourned the appeal (not reversed the dismissal) while it investigated.
- It did not matter that some of the dismissal grounds relied upon by the employer were not claimed to arise from the disability. It was enough that the disability had a “significant influence” on the conduct which had led to the termination.
- Neither the employer nor the ET had carried out the balancing exercise required by Section 15 Equality Act between the Association’s legitimate objective of maintaining behavioural standards in its workforce on the one hand and the detriment caused to Baldeh by her dismissal on the other.
The EAT did not agree that the Association’s unawareness of the disability at the point of dismissal determined the whole case. It therefore sent the matter back to another ET to consider whether the rejection of Baldeh’s appeal was a breach of Section 15 – in other words, whether in the knowledge of Baldeh’s disability, her dismissal was justified. That will take the new ET into some morally and legally vexing questions, including:
- How far do you have to warn or counsel a disabled employee about their conduct in circumstances where a non-disabled employee of the same length of service could be dismissed without it, and where this procedure could well be pointless because the behaviours are not deliberate in any case?;
- How far does the employer have to put up with substandard conduct or performance merely because it may arise form a disability?; and
- Where that conduct of performance directly and prejudicially impacts other employees or third parties, as here, how far can they reasonably be expected to live with that?
We will attempt some answers to these questions in posts to follow shortly.