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Disability Discrimination: It Is What You Know
A little bit of knowledge is a dangerous thing. In fact any knowledge could be dangerous for an employer with an employee in the workplace who has a disability.
In the recent case of Baldeh v Churches Housing Association, the employer dismissed Mrs Baldeh at the end of her 6 month probationary period for reasons including performance and behaviour. The employer did not know at that time that Mrs Baldeh suffered from depression and could not reasonably have been expected to know this. At the Tribunal stage, the employer was not found to have discriminated against Mrs Baldeh because of her disability.
However, things did not go the employer’s way at the Employment Appeal Tribunal. Although it was accepted that the employer may not have known that Mrs Baldeh was suffering from depression when she was dismissed, it was found that they may have known about it further down the line before rejecting her appeal against her dismissal. At the appeal hearing, Mrs Baldeh mentioned her mental health. She revealed to her employer that she had suffered a breakdown in the past.
It was also relevant in this case that Mrs Baldeh could argue that her depression played a part in the behaviour which was stated to be one of the factors which led to her dismissal. In other words, Mrs Baldeh argued that the discrimination against her was disability related. Mrs Baldeh was pulled up for the tone of her text messages, her communication style and how she related to her colleagues. At the same time, Mrs Baldeh had disclosed to her employer that her behaviour could be unusual and that she could sometimes say unguarded things. The links here are clear.
What can employers take away from this?
Employers should be alert to employees bringing up medical conditions which could amount to a “disability” – both physical and mental. Once they have that knowledge, that should trigger a chain of events including a referral to occupational health to allow an employer to understand more about the medical condition in question and to start to consider reasonable adjustments. A failure to make reasonable adjustments is a type of disability discrimination in itself and employers are expected to think outside the box to help disabled employees at work.
Also, where an employee is being disciplined for something which could be happening because of a disability, approach with care.
What can employees take away from this?
Deciding whether to tell an employer about a disability is a dilemma employees often agonise over. They may have concerns that revealing a disability could be career limiting. This case shows though that telling an employer about a disability even at a late stage in a disciplinary process, was the very thing that led to the employee being protected by the disability discrimination laws.
Rhian Radia joined Bishop & Sewell to head up the employment team in 2019.
She has a City background and over 19 years of experience practising employment law. Rhian advises both companies and senior individuals on a full range of employment matters and is well placed to see employment issues from every perspective. She works closely with HR teams to promote claim avoidance and manage risk. Rhian is committed to understanding the specific needs of her various clients and has particular experience of advising in the financial services, healthcare and media sectors.