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

Very often the National Golf Clubs’ Advisory Association receives requests for advice from golf clubs to ask if they can safely dismiss an employee who is within their initial six month probationary period or within their first two years of service.

It remains the case that an employee will generally need two years of continuous service in order to bring a claim for unfair dismissal (subject to a handful of exceptions); it is also the case that no qualifying service is needed in order to claim discrimination under the Equality Act 2010. Discrimination claims are therefore available to job applicants and employees with any length of service.

The Employment Appeal Tribunal (‘EAT’) in the case of Stott v Ralli 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 (‘the respondent’) which is 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.

When we are asked about the dismissal of an employee with short service, we always recommend following a procedure where the golf club invites the employee to a meeting before dismissal is contemplated, in a mirror to the procedure for an employee with two years or more of continuous service. Note, as above, that employers can escape liability if they did not know and could not reasonably be expected to have known about the employee’s disability at the relevant time. We would suggest that it would be reasonable (as the employer did in the Stott v Ralli case) for the employer to hold a meeting before dismissal; it would be dangerous to skip the meeting stage and for the employer to state that they had no knowledge of any disability when seeking to defend their position.

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. If the golf club gives the employee the chance to present their case in a hearing before dismissal, it should be in a strong position to escape liability if the employee fails to raise the matter. 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.

For any further advice on employment issues or other legal matters affecting your golf club, please contact Alistair Smith, CEO of the National Golf Clubs’ Advisory Association (NGCAA), on 01886812943 or office@ngcaa.co.uk