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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Baldeh v Churches Housing Association of Dudley & District Ltd  UKEAT 0290_18_1103 (11 March 2019)
Cite as:  UKEAT 0290_18_1103
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|At the Tribunal|
HIS HONOUR JUDGE SHANKS
Transcript of Proceedings
|For the Appellant||MS KAREN MOSS
|For the Respondent||MRS MICHELE PECKHAM
DISABILITY DISCRIMINATION - Disability related discrimination
The Claimant was dismissed by the Respondent at the end of a six-month probationary period. It was accepted that she was disabled by depression. She claimed that her dismissal was an act of disability related discrimination under section 15 EqA 2010.
The ET rejected the claim because:
(a) They found that the Respondent did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal;
(b) They said there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) "arose in consequence of" her disability;
(c) There were other reasons for her dismissal in addition which were sufficient;
(d) The dismissal was justified under section 15(1)(b) EqA 2010.
The EAT allowed the appeal because of errors in relation to each stage of the reasoning:
(a) Although the Respondent did not know about the Claimant's disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining;
(b) There was in fact some evidence that her depression caused the relevant behaviour which the ET ought to have considered;
(c) It was sufficient for the "something arising in consequence" of the disability to have a "material influence" on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim;
(d) The ET failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response.
The EAT therefore remitted to a fresh ET the issue whether the rejection of the Claimant's appeal was an act of discrimination under section 15 EqA 2010.
HIS HONOUR JUDGE SHANKS
"The meeting is to discuss your performance in the role of Support Worker. We will be reviewing your progress to date, with particular emphasis on the issues we have discussed during your supervision sessions and your manner towards the Foyer Team and our service users. These include:
- Breach of professional boundaries by loaning a service user money without authorisation.
- A complaint from a service user about the tone of a text message which you sent to them.
- Two Incidents of breaching data protection in regards to not maintaining confidentiality of service user information.
- Failing to consult with senior staff relating to an instruction left for you on 01 05 15, you stated that another team member told you not to
- Your communication and how you relate with your colleagues and myself."
There was then a paragraph about being accompanied by a work colleague, and then the final paragraph says: "I must inform you that possible outcomes of this review meeting include an extension to your probationary period or the termination of your employment".
"6. Relating to your manner of work, in my review of your supervision documents, notes of your probationary review meeting and line manager's file notes, there is indication that several of your colleagues have made comment about your manner while at work. During your appeal hearing you describe that your behaviour can be unusual and that you can say things unguarded and at this point you offered information about your mental health, which we were previously unaware of and which you confirmed that you had not divulged to anyone at CHADD…."
I will not quote that letter further, but I note at this stage the findings of the Tribunal at paragraphs 96-98 of the Judgment where they describe what was discussed at the appeal hearing and they say that the Claimant referred to her behaviour being such that she had seen the pattern before with her mental health and could say things that were unguarded. She informed the appeal hearing that she had had a breakdown in the past and knew the signals. At paragraph 98 the ET say: "Having heard all the evidence we find that the claimant's statement to [Mrs Greenidge] about her mental health was the first time that the claimant had given any indication to the respondent at that mental health was fragile such as to put note the response on notice that her behaviour was evidence of impairment that had long-term and significant adverse effect on her ability to undertake normal day-to-day activities (sic)". Mrs Greenidge rejected the appeal and the decision as to dismissal therefore stood.
(1) A person (A) discriminates against a disabled person (B) if-
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
The issues in relation to the disability discrimination claim were set out at paragraph7(b) of the Judgment as follows:
I. The respondent accepts the claimant was a person with a disability at material times; that is by depression.
II. Should the respondents have had either actual or constructive knowledge of the disability at the material time?
III. Was how colleagues perceived the claimant's communication with them "something arising from her disability"?
IV. Did the "something arising from her disability" materially influence her dismissal?
V. If the required causal link is established, does the respondent have a legitimate aim in treating the "something arising from" as a reason for dismissal?
"The claimant's communication with her colleagues was considered to be blunt and suggestive that the claimants way of doing things was the right way of doing things. We have heard no evidence to suggest and lead us to conclude that the claimant's communication with her colleagues and managers was anything other than her personality trait and was something to do with or arising from her disability".
That, I am afraid to say, was just not right. There was evidence from the Claimant herself on this point which is recited by the Tribunal at paragraphs 33-36, and that was in addition to the passage in Mrs Greenidge's letter which I have already quoted. In those paragraphs the Claimant herself described how she would respond aggressively to others while suffering a depressive episode. She also said that such an episode would affect her short-term memory which may have been relevant to another ground on which she was dismissed i.e. that relating to the loss of private data belonging to clients which she had suggested was because she had simply forgotten to put away sensitive documents. Therefore, this link in the reasoning simply cannot be supported.
"Our findings of fact lead us to conclude that the respondent's decision to terminate the claimant's employment was for the reasons outlined to the claimant in the invitation to the probation review meeting  and not something arising from her disability. The claimant asserts that her perceived communication may have been something arising from her disability. We observe that the detailed reasons for concern in the claimant's performance referred to communication as the 5th element of concern most significantly in respect of her communication with work colleagues and her managers and we have no doubt that each of the other 4 reasons why the claimant's behaviour was unsatisfactory would have caused the employer to had concerns and considered her unsuitable to continue in their employ".
In other words, as I understand their reasoning, they are saying the other four points raised in the letter of 29 May 2015 would on their own have led to the loss of her job, that is excluding her communication and how she related with colleagues and Mrs Greenidge herself. Quite apart from the memory issue which I have just mentioned, which may go to the data protection point, it is clear that all that is required is that the 'something' (in this case inadequate communication with colleagues) only has to have a 'significant influence' in causing the relevant unfavourable treatment; it does not have to be the sole or principal cause. Again, the Tribunal's reasoning in so far as it suggests that because there were four other reasons for her dismissal that was the end of this issue is clearly deficient, although the conclusion they reach at paragraph 104 (if confirmed) may well be relevant to the question of compensation on the basis that absent any discrimination, the Claimant would have been dismissed in any event.
"We find that the claimant was dismissed for something other than her mental health issues and the respondent's decision has been and had a proportionate means of achieving a legitimate aim to ensure that it cared for vulnerable young people and for their staff who worked within a pressured environment and sought to maintain high professional standards and team work."
I am afraid that sentence reveals a number of errors. First, the issue was not whether she was dismissed for something other than her mental health; the issue was whether she was dismissed for something which arose in consequence of her disability. Second, the legitimate aim is described but the Tribunal do not engage at all with the Claimant's disability, or the question whether the dismissal was a proportionate means of dealing with the legitimate aim because they make no attempt to balance the prejudice to the Claimant of losing her job for something potentially arising out of her disability against the need to achieve the legitimate aim; they simply do not engage with the justification defence properly.
(1) The appeal is allowed on all four grounds;
(2) The issue whether the Respondent's rejection of the Claimant's appeal against her dismissal was an act of discrimination on grounds of disability under section 15 of the Equality Act 2010 and, if so, what compensation (if any) she is entitled to should be remitted to be decided by a fresh Employment Tribunal.
(3) The matter is to be listed before an Employment Judge for directions to be given as to its further conduct in the light of the EAT's Judgment, subject to the following directions:
(a) any Polkey-type issue is to be determined at the same hearing as that on liability; and
(b) any findings of primary fact in the ET's Decision of 19 December 2017 are binding on the parties subject to the omission from paragraph 51 of the words "notwithstanding… assist the Claimant".