The EAT has found that a tribunal was right to reject a claim for discrimination arising from disability where an employer only found out about the employee’s disability after dismissing the employee. The tribunal was found to be justified in its findings, on the facts, that the later-acquired knowledge was not relevant to the specific facts of the claim at hand.
The claimant in this case was employed at a firm of solicitors. She suffered from long-term anxiety and depression. She started work at the respondent in October 2017 as a paralegal. Numerous errors were picked up in her work by her supervisors. A conversation with the claimant on her performance, as well as efforts to give her simpler work, resulted in no improvement.
The respondent dismissed the claimant at a meeting on 8 January, during her trial period, for poor performance. At the meeting, the claimant said that she had been distracted due to a “recent bereavement”. After the dismissal meeting, the claimant wrote to her employer referring to her mental health issues.
The claimant then began a grievance procedure, during which she once again raised her mental health issues as the reason for her performance. Her grievance was about a number of matters and was not in terms said to be an appeal against dismissal. The grievance procedure was unsuccessful, as was the subsequent appeal.
The tribunal claim
The claimant brought a discrimination claim under s.15 Equality Act 2010. She also brought a number of other claims, which were withdrawn. Section 15 discrimination claims are for unfavourable treatment because of something arising in consequence of the claimant’s disability, if the treatment cannot be shown to have been a proportionate means of achieving a legitimate aim (the justification defence). Any s.15 claim will also fail if the respondent can successfully demonstrate that they did not know, and could not reasonably have been expected to know, about the claimant’s disability.
The tribunal found that the claimant’s anxiety and depression amounted to a disability and that her dismissal was clearly unfavourable treatment. However, they found that the respondent had demonstrated they were not aware of the claimant’s disability at the point of her dismissal.
Grounds of appeal
The EAT claim concerned three grounds of appeal, covering three aspects of s.15, namely:
- a failure to consider whether her poor performance was something arising from the claimant’s disability;
- a failure to regard the grievance and appeal process as an integral part of the dismissal process, and to consider the knowledge of the respondent at that stage; and
- an incorrect finding that the justification defence was made out.
The EAT accepted ground one, as this was a question the tribunal had failed to address in its judgment. However, the two other grounds were unsuccessful, meaning that the appeal overall was dismissed. On ground three, the EAT found that maintaining high standards of work was a legitimate aim and that dismissal was proportionate, since the respondent had already tried lesser means to meet the aim, such as additional supervision and providing her with simpler tasks.
The knowledge element
The EAT’s findings on the second ground are of particular interest. The EAT acknowledged that the respondent had constructive knowledge of the disability from when the claimant informed them of her anxiety and depression shortly after her dismissal meeting. This means that the respondent had the requisite knowledge during the grievance and grievance appeal procedures, when the claimant’s dismissal was reconsidered.
However, the EAT found that, despite this, the grievance and appeal procedures did not form part of the dismissal procedure. For the purposes of a discrimination claim, whether a decision to dismiss and whether a decision on an appeal were discriminatory are two distinct propositions. They must be raised and considered separately. This scenario was distinguished from unfair dismissal claims, where any appeal is an integral part of the dismissal procedure. In this case, even on a generous reading of her claim documents, the EAT found that the claimant had not brought a claim for discrimination in relation to the grievance and grievance appeal procedures, but only in relation to the dismissal itself, where, at that time, the respondent had no knowledge of the claimant’s disability.
Points to note
This case highlights the importance of timing in relation to claims involving knowledge requirements. However, even though, in this case, it was found that the tribunal was right not to consider the knowledge of the respondent after the dismissal, it did not state that this is always irrelevant. This case turned on its own specific facts. If the claimant had raised a claim in relation to the grievance procedure, there is a possibility that the tribunal would have considered the knowledge of the respondent at that point. In that scenario, the outcome could have been very different. Employers should therefore remain alert to any kind of disclosures by staff that could imply any potential disability. Employers should then in turn consider the impact of a disability on all aspects of working life before taking any action to manage performance. This will include steps taken after a dismissal.