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Learning about disability AFTER dismissal | Is it still discrimination?

Written by Ed McFarlane on 2 November 2021

All employers must take care to avoid unlawful discrimination when dismissing employees. If you dismiss a disabled employee, for example, and cannot objectively justify your decision, this could amount to discrimination arising from disability.

But what happens if you’re only made aware of the employee’s disability after the fact? A recent case has shed some light on how cases like this will be decided at Tribunal.

Stott v Ralli Ltd

The claimant in this case, Ms Stott, was a paralegal in a firm of solicitors. She was dismissed in her probationary period for poor performance.

She then raised a grievance, claiming that she had been dismissed as a result of mental health related disability. The grievance was rejected, as was a grievance appeal.

Ms Stott, representing herself, brought a claim. In her complaint, she alleged that her dismissal was discriminatory but didn’t mention the grievance and appeal outcomes.

The claim was clarified through several preliminary hearings and at the final hearing. The Tribunal held that the employer did not know – and could not reasonably have been expected to have known – about Ms Stott’s disability when dismissing her, given that this was only brought to their attention in her grievance later on. This meant that there was no disability discrimination in the decision to dismiss.

Ms Stott appealed the decision. The EAT held that, on the facts, the case was purely about the claimant’s dismissal, and not what happened afterwards. Therefore, it was not wrong of the Tribunal to have only considered if the dismissal was discriminatory, as the grievance and appeal were not part of Ms Stott’s compliant and therefore not relevant to the case at hand.

Ultimately, knowledge or constructive knowledge of disability acquired after the dismissal could not assist the claimant and the EAT upheld the Tribunal’s original decision to reject her claim.

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Lessons for employers

This case confirms that complaints about a discriminatory dismissal and a discriminatory appeal can be different matters, unlike in unfair dismissal claims, where the whole process is part of the question of fairness. In such cases, each decision can be scrutinised, and different outcomes are possible. One manager might be unaware of an employee’s disability, but another one (usually on appeal) could be fully aware.

In this case, the employer was fortunate as it did not have to justify its decision on the claimant’s grievance and appeal, simply because the claimant focused on her dismissal. If the claimant had been less focused on the dismissal, or had got professional advice, the outcome might have been different, and the case would have certainly been more complex.

3 things you need to know about disability discrimination

1

Under the Equality Act 2010, one form of discrimination occurs when a person treats another unfavourably because of something arising in consequence of that person’s disability, e.g. unsatisfactory performance caused by a disability rather than because of the condition itself. In other words, dismissing a disabled employee won’t always amount to unlawful discrimination – provided the reasons for doing so are justified, even if connected to their disability.

2

There is no qualifying period needed to bring a claim for discrimination. Unlike unfair dismissal where employees must have two years’ service in order to bring a claim (with some exceptions), employees can bring claims for discrimination at any point during their employment (including during the pre-employment phase). As such, while employers often think dismissing short-service employees is risk-free, it’s still important to be mindful of discrimination risks. In particular, when someone has problems at work that are disability-related, it may not always be clear if disability is an issue or the reason behind a problem, and employees may be understandably reluctant to be frank about their problems. Also, some managers might know about a condition, and others might not, all of which would be tested at a Tribunal.

3

In disability discrimination cases, an employer will have a defence if they can objectively justify the treatment complained of as a proportionate means of achieving a legitimate aim. This involves a balancing exercise to weigh up the employer’s legitimate aims against the discriminatory effect on the employee. Ultimately, disability discrimination is about protecting disabled people who are able to work, provided that their condition and its effects are reasonably accommodated.

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