In a recent case, the Claimant was employed as a support worker for a housing association which provided housing for vulnerable young people. She was dismissed at the end of her probationary period on the basis of poor performance, breach of professional boundaries by loaning a service user money without authorisation, breach of the service users’ data protection and poor communication with her colleagues. She appealed her dismissal. During the appeal hearing she raised the fact that she was suffering from depression, which could have influenced her behaviour towards her colleagues and affected her judgement. In particular, she stated that she could respond aggressively to others while suffering from a depressive episode. She also said that such an episode could affect her short-term memory, which may have been relevant to the concerns about her performance. Her appeal was rejected. The employee brought a claim of disability discrimination in the employment tribunal. She claimed, among other things, that she had been subject to disability related discrimination when the employer decided to dismiss her due to behaviour which was a consequence of her disability.
The employment tribunal dismissed her claim on the basis that her employer did not and could not have known about her disability at the time it dismissed her. The Claimant appealed. The question before the employment appeal tribunal (EAT) was whether the employer knew, or could reasonably have been expected to know that she had a disability before her appeal against her dismissal was rejected. The EAT upheld her claim on the basis that the internal appeal formed part of the dismissal process. The employer’s knowledge at the appeal stage of the disciplinary proceedings was therefore relevant and should have been considered by the employment tribunal. It found it was sufficient for the behaviour, which was labelled as ‘misconduct’ by the employer but which in fact was found to be a consequence of her disability, to have a ‘material influence’ on the decision to dismiss, for the dismissal to be discriminatory. The fact that there may have been other reasons for the dismissal was not an acceptable defence to the claim.
This decision confirms that the appeal stage is part of the dismissal process. This means that, new evidence that arises on appeal (that was not known at the time the decision to dismiss was made) may make an otherwise fair dismissal, unfair or even discriminatory, if the new evidence is not taken into account when reviewing the original decision to dismiss at the appeal stage.