A recent Employment Appeal Tribunal case further emphasises to employers that they cannot ignore a disability even if they only find out about it after an employee has been dismissed.
Where an employee has more than two years’ service (and therefore has the right to claim unfair dismissal) employers will be aware of the importance of dealing with all stages of a dismissal correctly to ensure it is fair. This includes proper consideration of any appeal. However, an employer should not just assume that because someone has less than two years’ service they can dispense with such formalities without any thought (although there may be situations where shortened processes can be adopted).
In the case of Baldeh v Churches Housing Association, Mrs Baldeh was dismissed at the end of her 6-month probationary period. She appealed that decision. Whilst she did not say anything about her mental health in her appeal letter, at the appeal hearing she told her now ex-employer that she suffered from depression and that the behaviour for which she had been dismissed was a result of her mental health. Her appeal was not upheld.
The EAT decided that the employer could have reasonably been expected to know Mrs Baldeh had a disability after her dismissal but before her appeal was rejected. The employer argued that any knowledge acquired by them after the dismissal had taken place was irrelevant. The employer’s position was that if they hadn’t known the employee was disabled when they dismissed her, they could not have discriminated against her. The employee’s representative said that failing to uphold the appeal was discrimination.
The EAT commented that “the outcome of an appeal against dismissal is integral to the overall decision to dismiss”. Therefore, it was possible for the decision on the appeal to be discriminatory.
This case is a reminder that, even if an employer did not know about a disability at the time of dismissal, if they become aware of it before any appeal is decided, they must then be able to demonstrate that the dismissal was either not discriminatory or that it can be justified. Otherwise, they risk a finding of disability discrimination against them.
The bands of compensation for injury to feelings in discrimination claims (‘Vento bands’) increased in April 2019. Whilst the Tribunal has a discretion as to what to award, these bands assist the Tribunal in determining the appropriate level of compensation to award. With this recent increase, the most serious cases are now attracting compensation in the band of between £26,300 to £44,000 (whilst the most exceptional cases are capable of exceeding £44,000).