“But we didn’t know!” When does an employer have knowledge of a disability?
I have noticed that a lot of the organisations that I and the team advise and work in partnership with have embraced Mental Health week which was a fortnight ago. Statistics 1 in 4 people in the UK experience a mental health problem each year. The Mental Health Foundation confirms that 1 in 6.8 people (14.7%) experience mental health problems in the workplace, and that 12.7% of all sickness absence days can be attributed to mental health conditions. When you look at the statistics there is a lot more to be done to help businesses and the individuals involved.
Mental health conditions can be protected under the Equality Act as a disability. But what if you as an employer or manager are not aware? When do you gain knowledge of the disability? The recent EAT case of Baldeh v Churches Housing Association highlights that where an employer should have gained knowledge of a disability during an appeal against dismissal, it may be unfair to dismiss. This is not a great decision for employers but again stresses how careful employers must be when dealing with mental health in the workplace.
Mrs Baldeh (B) was employed by Churches Housing Association of Dudley and District Limited (D) as a support worker, subject to a probationary period of six months. Issues were raised about her performance throughout the period, including breach of professional boundaries, complaints from service users, data breaches and communication issues with colleagues. After 6 months she was invited to a probation meeting to discuss these issues, and told that one of the outcomes could be termination. Following the meeting, D wrote to B to terminate her employment with a month’s notice. B wrote to appeal the outcome. The letter did not make any mention of depression or disability, but it was mentioned in the meeting.
The letter rejecting the appeal stated that B had said her behaviour can be “unusual” and had offered information about her mental health, which D said it had “not previously been aware of”.
B brought a claim to ET of disability discrimination, under s15 of the Equality Act 2010 (EqA). S15(1)(a) relates to discrimination where a person discriminates against a disabled person because of something arising in consequence of their disability. It does not apply if there was no knowledge of the disability, and D, the respondent could not have reasonably been expected to know.
D accepted at ET that B was disabled with depression, but argued that it could not have reasonably been expected to know of it at the time of the dismissal. The ET found that D had not known about the disability and could not have been expected to know. There was no evidence that her behaviour was “in consequence” of her disability. It found there were other reasons for her dismissal that were sufficient, and that the dismissal was in any event justified under S15(1)(b) EqA, which allows the treatment if it is a proportionate means of achieving a legitimate aim.
B appealed to the EAT. The EAT allowed the appeal. Although D did not know of B’s disability when the dismissal meeting took place, arguably they had acquired the necessary knowledge by the time of the appeal hearing. The rejection of the appeal formed part of the unfavourable treatment. There was some evidence that her depression caused her behaviour, which the ET had not considered, and it considered that it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment - the fact that there were other causes as well was “not an answer to the claim”. In addition, the ET had not addressed the s15(1)(b) defence properly and not considered whether dismissal was a proportionate response.
What does this mean for you or your business?
The EAT remitted the claim back to a new ET, as it considered the ET had not answered the correct questions. However, it is worth noting that if anything is mentioned by an employee (whether mental or physical health) which could be “substantial” (i.e. which impacts on their day to day lives) and “long-term” (likely to continue for a period of longer than 12 months), they may have a disability under the EqA and therefore have protection under the Act. It is therefore important to seek advice and an occupational health assessment before making any decisions to dismiss and document any decisions made as this could be helpful evidence that any decision to dismiss was not discriminatory.
What do you need to be doing now?
As an employer, make sure that you follow the ACAS code on disciplinary and grievance and your own policies when investigating and making any decisions to dismiss. Be aware of anything that could be considered a ‘disability’ and make sure that an Occupational Health specialist and HR are involved if it is necessary so that reasonable adjustments can be made. If in doubt, seek our advice as this is a growing area and difficult to navigate in the workplace.
Employers should take practical steps to ensure that they are able to support employees, such as making sure managers are trained on mental health and making sure that there is a culture of support in the workplace. ACAS has a useful section on mental health which can be found at HERE.
Finally BPE are supporting employers with the complex cross over between employment law and mental health and will be speaking about this at the forthcoming October CIPD event. Watch this space for details.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.