The recent EAT decision of Baldeh v Churches Housing Association has provided guidance on the extent to which “something arising in consequence” of a disability must be the cause of unfavourable treatment, for the purposes of a section 15 Equality Act 2010 (EA) claim.
Section 15 EA prohibits unfavourable treatment because of something that arises in consequence of a person’s disability, where that unfavourable treatment cannot be justified. The person alleged to have discriminated must have actual or constructive knowledge of the complainant’s disability.
Mrs Baldeh (C) was employed by Churches Housing Association (R) as a support worker. During her probationary period, C exhibited ‘quite aggressive’ behaviour towards her colleagues. C was dismissed at the end of her probation, which she appealed.
During the appeal, R became aware of facts which were capable of giving rise to actual or constructive knowledge of C’s disability - depression. C’s appeal was not upheld and, crucially, C’s depression was not taken into account.
C brought a claim of discrimination under Section 15 EA. The EAT considered that R had sufficient information at the appeal stage to have constructive knowledge of C’s disability. Given C complained that the appeal decision was an act of disability discrimination, the dismissal overall could still be discriminatory and she was therefore able to pursue the section 15 EA claim in respect of her dismissal.
When considering the link between the “something arising in consequence” of C’s disability and the less favourable treatment, the EAT confirmed that the correct approach was to consider whether the “something arising in consequence” materially influenced the treatment complained of – in this case the decision to dismiss C. It was incorrect to focus on whether there were other causes of her dismissal and whether they were in their own right sufficient to justify it.
The case has been remitted to be decided by a fresh tribunal.
Matthew Potter comments:
“If an employee asserts disability during an appeal against dismissal, that will be relevant to deciding whether the employer has knowledge of disability in so far as it relates to the original decision to dismiss. In such circumstances, employers should take steps to ensure that the disability is taken into account, and that the employee is not treated unfavourably as a result of something they have done which arises in consequence of that disability. Contact a member of our team if we can help”.
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