Does the period in which an employer must take into account the protected characteristic of disability include the period after dismissal to the end of the appeal process? Yes, according to Baldeh v Churches Housing Association [2019] UKEAT 0290_18_1103 (11 March 2019)

In this case Mrs Baldeh worked as a support worker and issues were raised in relation to her performance – this all happened within her six-month probationary period. Specifically, “… several of your [Mrs Baldeh’s] colleagues have made comment about your [her] manner while at work”

At her appeal hearing, she told her employer that she was suffering from depression which could have influenced her behaviour towards her colleagues and also affected her short-term memory. Following the rejection of her appeal, she claimed discrimination arising from disability, under s. 15 The Equality Act 2010.

When her claim to the Employment Tribunal was unsuccessful, she appealed to the Employment Appeal Tribunal who, perhaps unsurprisingly, found in her favour. The Employment Tribunal’s judicial reasoning was found to be defective in a number of areas, all of which make the judgment an interesting read.

More broadly, this case makes the following clear:

  1. An employer must take into account the protected characteristic of disability up to the end of the appeal process. It is reasonable to apply this approach to children/ young persons who are having exclusions considered by a governing body or Independent Review Panel.
  2. 15 The Equality Act 2010, discrimination arising from disability, relates to unfavourable treatment because of something arising in consequence of a person’s disability. The Employment Appeal Tribunal were very clear 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 may have been other causes did not assist the employer. Again, this may be of assistance in exclusion cases.
  3. A defence in 15 The Equality Act 2010 cases is that the employer – or we could also say school – did not know, and could not reasonably have been expected to know, that the person treated unfavourably had the disability. That said, it would be reasonable to say that, if the question of disability was on the radar, is should not be ignored rather it should really be investigated further.

An example of a small case with significant ramifications.

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