Employers: take care if employee discloses information late in a disciplinary process

The recent case of Baldeh v Churches Housing Association of Dudley & District has highlighted the importance of keeping an open mind until the end of a disciplinary appeal process, particularly when considering the impact of disabilities on an employee’s actions.

Mrs Baldeh was dismissed at the end of her probationary period for various reasons, including a complaint by a service user about the tone of a text message, failing to maintain confidentiality, failing to liaise appropriately with her managers and, significantly in this case, her communication style and the relationships with her managers and other colleagues.

When she appealed the decision to dismiss her, Mrs Baldeh told her employer that she suffered from depression and that, as a result, she sometimes behaved unusually, said “unguarded” things and experienced short term memory lapses.  The Housing Association did not believe that there was evidence that her “blunt” style of communication was anything other than a personality trait, rather than being caused by her disability and they upheld the decision to dismiss her.  Mrs Baldeh bought a claim that she had been discriminated against because of a reason arising from her depression (which was accepted by the Employment Tribunal to be a disability in this case).

The Housing Association made the point that it had not been aware of Mrs Baldeh’s disability at the time of her dismissal and so it could not have discriminated when it decided to end her employment. 

The Employment Appeal Tribunal (EAT) made clear that the appeal process was an integral part of the dismissal and therefore the employer was aware of Mrs Baldeh’s depression during the dismissal process.  Although the Housing Association had numerous reasons for not continuing Mrs Baldeh’s employment, for them to avoid being liable for discrimination, they needed to be able to show that the impact of her depression had no material influence on their decision to end her employment. 

It’s critical for employers to be able to show that they have carried out an impartial and non-discriminatory dismissal and appeal process, even if this means pausing a procedure to obtain extra evidence, investigate possible disability issues or discuss matters with the employee in more detail.  It’s important that employee’s aren’t penalised because they felt uncomfortable raising the issue of a disability until reaching an appeal.

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