Knowledge and disability: what do you know and when did you find out?

What happens if you discover your employee has a disability after you've dismissed them but before you determine their appeal. Do you have to reinstate and start the process from scratch? The case of Baldeh v Churches Housing Association of Dudley and District Limited provides some useful advice.

Facts

Ms Beldeh was recruited as a support worker assisting vulnerable young people to find accommodation. She was experienced and liked to do things 'her way'. She didn't follow the policies and procedures she didn't agree with and this put a strain on her relationship with her manager and other colleagues. Shortly before the end of her probationary period she was dismissed because of concerns about her work. These included breaching professional standards (she had loaned £10 to a service user without authorisation), a complaint from a service user about a text message she had sent, two incidents of breaching data protection and her style of communication which was said to be abrupt and rude. 

Ms Beldeh appealed. During her appeal hearing she explained that she suffered from depression and had had a breakdown in the past and this meant that she was sometimes rude and abrupt when interacting with others. This was the first time she had mentioned this to her employer. She acknowledged her failings and apologised. Despite this, her employer decided to uphold her dismissal. 

Ms Beldeh brought a claim alleging that her dismissal arose from her disability. During her evidence, she said that in early stages of a depressive episode, she could be very aggressive and loud and not give other people the chance to speak and could sometimes forget things. 

The Employment Tribunal rejected her complaint. It accepted that she was disabled but said her employers didn't know about her depression at the time it dismissed her and had no reason to suspect Ms Beldeh's behaviour may have been linked to this. Ms Beldeh appealed.

Decision

The EAT upheld her appeal and remitted the case back to the Tribunal to decide if Ms Baldeh's dismissal arose from her disability.

It accepted that the employer didn't know about Ms Baldeh's disability at the time it dismissed her, but said it did know enough to amount to actual or constructive knowledge of it before it rejected her appeal. 

The appeal was not divorced from the dismissal and was part of the overall process.

Tips

If, during PIPs or disciplinary proceedings,  your employee raises any issue that suggests he/she might have a disability you should suspend the process and, if necessary, take medical evidence to determine if they have a disability. If they do, you should make reasonable adjustments. If you're assessing someone's performance you will have to allow them sufficient time to improve once you've made any adjustments before imposing any sanctions.

Need more information?

Please contact Sybille Steiner if you need help dealing with a member of staff who you suspect or know to have a disability.

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