Is it sufficient for the "something arising in consequence" of a disability merely to have a "significant influence" on the unfavourable treatment complained of?
Yes, held the EAT in Baldeh v Churches Housing Association.
Mrs Baldeh was dismissed at the end of a six-month probationary period after concerns about her performance and behaviour. She appealed, but this was turned down. In fact, she was disabled with depression. She claimed disability related discrimination under section 15 of the Equality Act.
Her claim was rejected by the tribunal. It considered the employer did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal. There was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) "arose in consequence of" her disability. There were other reasons for her dismissal, in addition, which were sufficient. In any event, it said, the dismissal was justified under section 15(1)(b) as being a proportionate means of achieving a legitimate aim (ensuring care by the employer for vulnerable people by a professional team).
The EAT held there were a number of errors in this reasoning.
Although the employer did not know about the disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal. Mrs Baldeh had mentioned her mental health at the appeal hearing and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining.
Further, there was some evidence that her depression caused the relevant behaviour. The tribunal's finding on this point "was just not right". Importantly, said the EAT, it was sufficient for the "something arising in consequence" of the disability to have a "significant influence" on the unfavourable treatment. The fact that there may have been other causes as well was not an answer to the claim.
In addition, the tribunal failed to consider the section 15(1)(b) defence properly by omitting to address the question whether dismissal was a proportionate response, that is, balancing the prejudice of Mrs Baldeh losing her job, against the need to achieve the legitimate aim.
Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.