In some cases an internal appeal can correct mistakes made at the dismissal stage. However, in Baldeh v Churches Housing Association of Dudley & District Limited it was the mention of depression at the appeal hearing that caused all of the problems..
The housing association had dismissed Mrs Baldeh after only six months service. She had had a number of complaints made against her relating to failings in her dealings with both service users and her colleagues. Without having the necessary length of service to be protected from unfair dismissal and, at the time of the dismissal there being no indication of any disability or indeed illness, the housing association may have thought that dismissal would be fairly straightforward. Indeed, but for discussions at the internal appeal it probably would have been.
Having been dismissed, Mrs Baldeh wrote to her employer appealing their decision. The letter of appeal made no mention of either disability or depression. However, during the course of the appeal hearing it became clear that Mrs Baldeh suffered from depression, she had had a breakdown in the past and that her condition sometimes influenced her behaviour. Despite this knowledge coming to light the employer dismissed the appeal.
Mrs Baldeh subsequently claimed her dismissal (the unfavourable treatment she was complaining of) was an act of disability related discrimination arising from her disability. The Employment Tribunal found that the respondent did not know and could not reasonably have been expected to know that Mrs Baldeh was disabled at the time of the dismissal, that there was no evidence that her behaviour towards her colleagues (which was part of the reason for the dismissal) "arose in consequence of" her disability. The tribunal also found that there were other reasons for her dismissal which were sufficient and that in any event, the dismissal was justified.
The EAT upheld an appeal by Mrs Baldeh on a number of grounds. These included:- a failure to properly consider the justification defence and a failure to recognise that there was evidence of the disability causing some of the behaviour that led to dismissal. The tribunal also incorrectly concluded that the fact there were other factors unrelated to the disability that led to the dismissal meant discrimination had not occurred.
There are important lessons for employers flowing from this case. Firstly, if evidence arises of a disability at any stage of a disciplinary process, including the appeal, that evidence needs to be fully considered. That could mean adjourning a meeting to investigate further whether a health condition is a disability and if the disability could have related to behaviours that led to the employee being disciplined.
Employers also need to bear in mind that, for an act of discrimination to have occurred, the reason for the dismissal need not solely be disability related. It is enough for a finding of discrimination for "something arising from disability" (in this case the behaviour towards colleagues) to have a material influence on the "unfavourable treatment" (dismissal) being complained of. The fact that there were other factors that led to the dismissal as well did not mean discrimination had not occurred.
And finally, don't assume that dismissing an employee with less than 2 years service will always be straightforward.