REWARD INSIGHT
Disability, privacy, discrimination
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Baldeh v Churches Housing Association The Employment Appeal Tribunal (EAT) was tasked with deciding whether the revealing of a disability during a dismissal appeal hearing gave the employer actual or constructive knowledge of a disability. The claim centred around section 15 of the Equality Act, which looks at discrimination arising as a result of a disability, and the EAT had to consider if the employer did not know, and could not have reasonably been expected to know, that the employee was disabled. The employee had reached the end of her six-month probation period. During this time, concerns had been raised about her conduct in a number of supervision sessions. The employee was invited to a probationary review meeting, where she was informed that there had been several complaints regarding the way she communicated with her colleagues and her apparent lack of boundaries with service users. Particular areas of concern were that the employee had loaned money to a service user without permission and had breached data protection laws by not maintaining confidentiality of service user information. Following the meeting, the employee was dismissed as she had been deemed not to have made ‘satisfactory progress
during her probation period’ but was told she could appeal against this decision. During the appeal hearing, the employee disclosed for the first time that she had depression, which had a long-term impact upon her behaviour and wellbeing. She outlined that her condition made her behave unusually, make unguarded statements and suffer from short-term memory loss. Her appeal was rejected, but the employee later brought claims to the Employment Tribunal (ET), arguing that the dismissal amounted to unlawful discrimination arising in consequence of a disability. However, the ET dismissed her claim, finding that the organisation had no actual or constructive knowledge that she was disabled at the time of her dismissal, and any later knowledge of a disability was irrelevant. The ET outlined that no evidence had been presented that showed her behaviour arose ‘in consequence’ of her disability and that there was nothing to suggest this was anything other than a personality trait. They found there were other substantial reasons for the dismissal not related to her style of communication and decided that the dismissal was justified. However, the employee appealed arguing that the initial ET made some ‘serious errors’ in its judgment. She
argued that there was sufficient evidence to suggest her depression had caused the relevant behaviour which led to her dismissal and the EAT agreed that no effort was made by the initial ET to gather any further evidence. The EAT also explained that the ET did not do enough to prove that the dismissal was a proportionate means of achieving a legitimate business aim and failed to take into account the prejudice involved in dismissing the employee under the circumstances. Therefore, the decision to dismiss the employee was deemed as discrimination arising as a result of a disability. This case offers a timely reminder that employers may still be liable for disability discrimination claims if the employee hasn’t disclosed disability or does so at a later stage in their employment. It also highlights the importance of an appeal in any dismissal situation and specifically that any new evidence presented at this stage must be investigated thoroughly before a final decision is made. Garamukanwa v UK This case, which involved the European Court of Human Rights (ECHR), focused on whether criminal evidence used by an employer as part of a disciplinary procedure breached an employee’s right to privacy under Article 8 of the European Convention of Human Rights. The employee had recently been involved in a personal relationship with his colleague, Ms Maclean, which had come to
... decision to dismiss the employee was deemed as discrimination...
| Professional in Payroll, Pensions and Reward | September 2019 | Issue 53 32
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