The Employment Appeal Tribunal (EAT) have considered this point in Baldeh v Churches Housing Association of Dudley and District Ltd  UKEAT/0290/18 and found that disclosure of a disability at appeal stage can render a dismissal unfair and discriminatory.
In this case, the Claimant had been dismissed after 6 months of service for a variety of reasons including failure to maintain confidentiality of service user information and loaning money to a service user. Her communication style was also criticised and she was deemed unsuitable for the role.
At appeal she disclosed that she was suffering from depression which could cause her to act out of character. The Respondent dismissed her appeal and upheld the decision to dismiss.
The Employment Tribunal found that the Claimant was suffering from a recognised disability but that the Respondent had adequate grounds for dismissal without taking account of the effects of the disability.
The EAT was very critical of the Employment Tribunal’s approach to analysing the key components of the claim and application of the Equality Act 2010.
Under section 15(1) of the Equality Act 2010, “discrimination arising from disability” occurs where both:
- A treats B unfavourably because of something arising in consequence of B’s disability.
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
However, there will be no discrimination under section 15 “if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”.
The EAT concluded that whilst the Respondent may not have known of the disability at the disciplinary hearing where they elected to dismiss, the outcome of an appeal against a dismissal is “integral to the overall decision to dismiss”.
It was found that the Tribunal should have considered whether the disability had a material influence on the decision to dismiss and whether the dismissal was a proportionate means to achieving a legitimate aim.
Following on from this decision it is clear that the latent disclosure of a disability at appeal stage should be treated seriously and further investigations will be needed. The case is not saying that someone with a disability cannot be dismissed but a careful review of the disability and its effects will be needed to make sure that an employer has not acted in a discriminatory manner.
If you would like any advice on the contents of this article please do not hesitate to contact one of our experienced advisors. We are experts in discrimination law and can advise you on best practice when dismissing or if you have been dismissed. You can contact us on 0114 303 2300 or email [email protected]