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United Kingdom

UK: Latest EAT decision on discrimination arising out of disability

Mrs Baldeh, a housing support worker, was dismissed by her employer at the end of a six-month probationary period, after a number of concerns were raised about her behaviour and performance. She appealed against her dismissal and during the appeal hearing, for the first time, Mrs Baldeh provided information about her mental health. She explained that her behaviour could sometimes be unusual, that she could say things “unguarded” and she had in the past had a breakdown. However, her appeal was rejected and she subsequently brought a tribunal claim for discrimination arising from her disability.

The EAT said that the appeal hearing is an integral part of the decision to dismiss an employee and it is therefore relevant to consider what the employer knows, or ought to know, at the time they decide the outcome of an appeal. So the EAT concluded that it was at least arguable that the employer had actual or constructive knowledge of Mrs Baldeh’s disability before it rejected her appeal.

This case serves as a useful warning for employers that they may obtain the requisite knowledge of an employee’s disability as late as the dismissal appeal hearing. Mrs Baldeh did not provide medical evidence to support her assertion at the appeal hearing that the behaviour and performance issues were as a result of her disability. If an employer is made aware of an employee’s disability in these circumstances, they should consider obtaining medical advice before holding a re-hearing of the disciplinary hearing with the medical evidence.

Baldeh v Churches Housing Association of Dudley & District Ltd