Dismissing an employee and disability discrimination

There are some useful learning points for employers to note following a recent tribunal, please see below:

The Employment Appeal Tribunal (EAT) heard the case of Stott v Ralli Ltd EA-2019-000772-VP on 16 June 2021 and It was published on 19 October 2021. 

The case Involved a claim pursuant to section 15 of the Equality Act 2010 (EA 2010), that the claimant's dismissal was an act of discrimination because of something arising In consequence of disability. The appeal was dismissed. 

Summary of the case facts

 The claimant was a paralegal in a firm of solicitors.

• From the outset of her employment, numerous errors were noticed in her work which had to be referred back a number of times. The respondent discussed the errors with the claimant who explained she was “having trouble sleeping”. This was taken as a passing comment.
• She was dismissed for poor performance in her probationary period.
• She did not appeal the dismissal decision, but she did raise a grievance, in which she referred to mental health issues and a heart condition as disabilities, making the Respondent aware.
• The grievance was unsuccessful, as was the grievance appeal.
• The claimant brought a claim under section 15 EA 2010, that the dismissal was an act of discrimination because of something arising in consequence of disability.
• The claim before the tribunal was solely about the dismissal; claims were not made about the grievance and grievance appeal processes or outcomes.
• The tribunal found that she had anxiety and depression which amounted to a disability.
• The tribunal held that the respondent did not know, and could not reasonably have been expected to have known, about her disability at the time it dismissed the claimant.
• The claimant appealed to the EAT.
• The EAT held that, on the facts, the case was solely about the claimant’s dismissal (not what happened once the grievance was raised). Further, that it was not wrong for the tribunal to have only considered if the dismissal was discriminatory, as there was no claim concerning the grievance and appeal. This meant that the claimant could not rely on knowledge or constructive knowledge of disability acquired after the dismissal. 

You may be querying whether the outcome would have been different had the claimant included complaints about the grievance and appeal. 

The EAT said that had the tribunal been under an obligation to consider the knowledge question as at the date of rejection of the grievance appeal, the evidence might not necessarily have been enough to point to the conclusion that the disability was made known to the respondent, bearing in mind the claimant did not provide medical evidence at that stage. 

However, the tribunal would have been bound to conclude that the information was enough to at least put the respondent on notice that she might be a disabled person. Therefore, it would have been reasonable for the respondent to make further enquiries.

 Important points

It is important for employers to think about the potential for disability to play a part in poor performance.

Employers should ask themselves - can we show that we did not know, and could not reasonably have been expected to know, that a staff member had a disability (or could have a disability)?

Has an employer asked the individual what they believe is the cause of their performance issues? Is any further support or training needed? Are further enquiries necessary?

Keep records of discussions, decisions and the reasons for those in case you need to refer to them at a later date.

If you require any more information on this topic please contact Helena via [email protected] or call 01206 217624.