Do you need to know about an employee’s disability for your action to be discrimination?

Can there be a valid discrimination claim when the employer was only made aware of the disability following dismissal?

In Stott v Ralli Ltd,  the Employment Appeal Tribunal (EAT) recently considered whether an employment tribunal had made an error when it held that an employer’s decision to dismiss an employee on the basis of her poor performance was not an act of discrimination arising from the employee’s disability where the employer was not made aware of her disability prior to dismissal.

The Facts

The employee was employed by the employer on 9 October 2017 and on 8 January 2018, she was dismissed for poor performance with immediate effect with the employer making a payment in lieu of notice.

An email was later sent from the employee to the employer’s HR manager setting out a grievance. The basis of the grievance was that the employee had been subject to discrimination and that the employer had been made aware of her mental health issues forming her disability on a number of occasions.

The grievance letter submitted by the employee set out that there was no evidence of her poor performance, that she was misled into signing her contract (which did not contain some aspects of her role) and that her dismissal was due to her disability.

At the grievance meeting the employee explained that her disabilities consisted of mental health issues, anxiety, depression, and a heart condition and that her mental health affected her performance. The employee explained that she “sort of” mentioned her disability during her interview and mentioned to a colleague that she has sleeping issues and was not herself.

The employer rejected the grievance setting out that the employee never made the employer aware of her disabilities. The employee appealed the grievance, but this was subsequently not upheld. The employer wrote to the employee setting out the decision in what the tribunal described as “lengthy and detailed” letter and covered all her complaints.

The employee subsequently made a claim in the employment tribunal for discrimination arising from disability in resect of the decision to dismiss her.

The employer argued that that it had no knowledge of the employee’s disability at the time of the dismissal and the first time it was made aware of her disability was during the grievance process, which came after her dismissal.

The employment tribunal dismissed the employee’s claim and held her dismissal was due to her poor performance and that she had not disclosed her disability at any time prior to her dismissal. The tribunal held that there was nothing in the employee’s CV to suggest that she might have a disability and her employer had asked her for reasons relating to her performance. 

In addition, the tribunal found that the justification defence applied in that the employer had a legitimate aim of maintaining a “high standard of and accuracy in English language in written communications with clients” and that the employee’s supervision, efforts to correct her work and the decision to dismiss her were a proportionate means of achieving that aim.

The employee appealed the decision on three main grounds:

1. that the tribunal failed to consider whether her poor performance was something arising from her disability,
2. that the tribunal erred in relation to its consideration of the knowledge issue, and
3. it had failed to carry out the balancing exercise when considering the justification defence.

The Decision

For the appeal to succeed, the employee needed to succeed on all three grounds. Two of the three grounds were dismissed and so the EAT dismissed the appeal.

The EAT accepted that the tribunal had failed to reach a conclusion about whether the poor performance was something that arose from her disability.

However, the EAT dismissed the employee’s argument that the employer had knowledge of her disability and that the tribunal had not failed to treat the knowledge of the disability obtained after the dismissal as relevant to her claim.

It was also held that that the justification defence had been made out.

What to take from this decision?

In this case the employee’s claim relied solely on the employer’s decision to dismiss and so the employment tribunal considered the facts specific to that event.

If an employee lodges an appeal against a decision to dismiss where the employer is unaware of a disability, it will be in the employee’s interest to set out their appeal from a different perspective for example by specifically setting out that the employer now has knowledge. An employee will then be open to make a separate discrimination claim based on the appeal if the appeal is not upheld.

If you are faced with a tricky situation where disability discrimination may be an issue, it is important to take advice as early as possible to avoid any potential claims.

If there are poor performance issues, we recommend that you have regular discussions about the issues and you document discussions with employees so that there is a clear record of what is said for future reference. It is important to ask an employee why they think there may be an issue with their performance and note this down.

One of the best ways to be clear on what is discussed is to summarise your discussions in writing back to the employee and send or give to them for their records. For example:

‘On Friday 1^st October we discussed the following issues I have identified with your performance 1. 2. 3. You explained that you felt it was due to lack of confidence and understanding of the role and therefore I have arranged for you to shadow Joe Bloggs for the next 2 weeks so that you can see how it is done correctly. I will follow up with you after 2 weeks and see how things are going. Any questions please let me know.’

If you have any questions in relation to disability discrimination, performance issues, or anything else, please feel free to contact a member of our team.

You can read the full judgement in this case here: Stott v Ralli Ltd