Baldeh v Churches Housing Association of Dudley & District Ltd

For a claim under section 15 of the Equality Act 2010, unfavourable treatment may include the rejection of an appeal against dismissal where that rejection forms part of the overall dismissal decision. Knowledge acquired before the appeal outcome may therefore engage the statutory knowledge requirement.

The relevant consequence of disability need only have a material or significant influence on the treatment. It need not be its sole or principal cause. Where justification is relied upon, the tribunal must consider whether the treatment was a proportionate means of achieving the legitimate aim, including by balancing the prejudice to the disabled person against that aim.

The claimant, a support worker dismissed at the end of her probationary period, was disabled by depression. The Employment Tribunal dismissed her claim under section 15 of the Equality Act 2010. It found that the employer lacked actual and constructive knowledge before dismissal, that no relevant conduct arose from disability, that other dismissal reasons were sufficient, and that dismissal was justified.

During her internal appeal, the claimant disclosed information about her mental health. The appeal was rejected. On appeal, the central question was whether the rejection of that appeal formed part of the alleged unfavourable treatment, and whether the Tribunal had correctly addressed knowledge, causation and justification.

1. Appeal allowed. The Employment Tribunal’s decision on the section 15 claim could not stand. The issue whether rejection of the claimant’s dismissal appeal was disability discrimination was remitted to a fresh Employment Tribunal.

2. The Tribunal’s unchallenged finding that the employer lacked actual or constructive knowledge before the original dismissal did not determine the claim. The claimant gave information about her mental health during the appeal hearing. The appeal outcome could properly be regarded as integral to the overall dismissal decision. The Tribunal should therefore have considered whether the employer knew, or could reasonably have been expected to know, of the disability before rejecting the appeal under section 15(2) of the Equality Act 2010.

3. There was evidence capable of showing that the claimant’s communication with colleagues, and possibly memory-related conduct, arose in consequence of depression. The Tribunal erred in stating that there was no such evidence without addressing the claimant’s evidence.

4. The statutory causal question was whether the relevant consequence of disability had a material or significant influence on the unfavourable treatment. It need not have been the sole or principal cause. The existence of other grounds for dismissal was therefore not, by itself, an answer to the claim, although it might affect compensation.

5. The Tribunal also failed properly to determine the defence in section 15(1)(b). Knowledge was irrelevant to justification. Although the employer’s aims were legitimate, the Tribunal had not balanced the prejudice of dismissal for conduct potentially arising from disability against the need to achieve those aims. It had therefore not decided whether dismissal was proportionate.

6. The remission was to a fresh Tribunal. The original Tribunal’s primary findings remained binding, except that unsupported words in paragraph 51 of its decision were to be removed. Any Polkey-type issue was to be determined with liability.

• Employment Appeal Tribunal: allowed the appeal and remitted the section 15 issue to a fresh Employment Tribunal: [2019] UKEAT 0290_18_1103.
• Employment Tribunal, Birmingham: dismissed the claimant’s claims under section 15 of the Equality Act 2010 and section 103A of the Employment Rights Act 1996 in a decision sent on 19 December 2017.