Can a dismissal be discriminatory if the employer only knew of the disability after the dismissal?

The Employment Appeal Tribunal (“EAT”) in the case of Stott v Ralli Limited has considered whether it was appropriate for the Tribunal to dismiss the Claimant’s claim for disability discrimination where the employer only found out about her disability after her dismissal.

Background

The Claimant worked as a paralegal for Ralli Ltd (“the Respondent”) who are a firm of solicitors. She was dismissed in her probationary period for poor performance in January 2018. Following her dismissal, the Claimant brought a grievance citing her disability and mental health issues. The grievance was unsuccessful as was her appeal against the grievance outcome.

The Claimant subsequently brought a claim to the Employment Tribunal (“ET”) contending that her dismissal amounted to discrimination arising from her disability.

The Law

A disability in employment law is defined under section 6 of the Equality Act 2010 (“the Act”) as “a physical or mental impairment” which has “a substantial and long-term adverse effect on [an individual’s] ability to carry out normal day-to-day activities.”

Under section 15 of the Act, it is unlawful for an employer to treat an employee unfavourably because of something arising in consequence of a disability, where that treatment cannot be shown to be a proportionate means of achieving a legitimate aim.

Under section 15(2) of the Act, an employer is exempt from liability in related claims where it did not know and could not reasonably be expected to have known about the employee’s disability at the relevant time, commonly referred to as actual or constructive knowledge.

Decision

The ET dismissed the Claimant’s claim for discrimination arising from disability. The Claimant sought to argue that her lack of concentration and confused thinking which led to her poor performance was as a result of her disability, being mental health issues. The Claimant also raised for the first time at the final hearing, that she was dyslexic and this was the reason for errors in her work. The ET noted that this had not been raised before nor did the Claimant have any evidence to support this fact.

The ET held that the Claimant had not disclosed her impairment(s) to the Respondent prior to her dismissal and so the Respondent could not be held to have had knowledge of her impairment when taking the decision to dismiss.

The ET also held that the Respondent had a legitimate aim and therefore a reasonable defence to the type of claim brought, as they had to maintain a high standard of work and accuracy in communications with clients and with courts, something which is a standard expectation in solicitors’ firms. The attempts to manage the Claimant’s poor performance and ultimately her dismissal were held to be a proportionate means of achieving that aim.

The EAT in dismissing the Claimant’s appeal upheld the Tribunal’s decision that the dismissal of the Claimant was not an act of discrimination arising from her disability. The EAT held that the Respondent did not have actual or constructive knowledge of her disability at the time of her dismissal.

The Claimant also sought to argue as part of her appeal that the ET had not considered if her poor performance was “something arising” from her disability and also, that her grievance following her dismissal should be regarded as an integral part of the dismissal process. The EAT noted that although the Tribunal had erred in failing to establish that the “unfavourable treatment” alleged in this case was the dismissal and that the “something arising” was the poor performance, it went on to conclude that her claim was not in fact relating to her grievance but solely limited to the decision to dismiss. Additionally, the EAT upheld the ET’s finding of a legitimate aim and therefore the Claimant’s claim under section 15 of the Act failed.

Comment

This decision emphasises the law on disability discrimination and the requirement for an employer to have actual or constructive knowledge about an employee’s disability for it to be liable for a claim for discrimination arising from disability amongst others. Further, the judgment from the EAT highlights the importance of employees articulating their complaints to the ET clearly from the outset so as not to be precluded from pursuing various lines of argument. As this case demonstrates, where an employer’s knowledge of an employee’s disability arises between arguably a non-discriminatory dismissal and an appeal against that decision, it is important for the employee to present the employer’s decision to uphold the dismissal despite new knowledge of the disability, as a separate act of discrimination as well as the earlier dismissal where appropriate. The Tribunal will not make a finding of discrimination where the case has not been properly pleaded by the Claimant.

Case reference: Stott v Ralli Limited EA-2019-000772-VP