Poor performance or discrimination

A recent Employment Appeal Tribunal decision highlights that, in order to bring a claim of discrimination arising from disability, knowledge of a disability by an employer is required at the time of the unfavourable treatment.

The case concerned a paralegal employee who was dismissed during her probationary period for poor performance. There had been no improvement in her performance after adjusting her tasks, supervision, and training.

Following dismissal, the employee advised her employer that she had been suffering from mental health issues and other impairments.  She initiated the firm’s grievance procedure, stating that she had been dismissed because of her disability. She asserted that she disclosed her mental health condition at interview. Her grievance and grievance appeal were turned down as there was no evidence that she had mentioned her disability to her employer prior to dismissal, despite being asked about reasons for her poor performance. Also, despite stating that she had a prior 5 -year employment gap due to mental health issues, this was not disclosed in her CV.

The employee brought a claim for discrimination arising from disability in connection with her dismissal.

Discrimination arising from a disability is when:

• An employee is treated unfavourably because of something (in this case poor performance) arising in consequence of the employee’s disability; and
• The employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This type of discrimination claim requires the employer to know or have reasonably been expected to know that the employee had a disability at the time of the unfavourable treatment.

The tribunal found that the employee only raised her disability during the grievance process and therefore the employer did not know or could not reasonably have known about this when they dismissed her. In any event the dismissal could also be objectively justified on the basis that a law firm needs to maintain high standards and accuracy in written communications.

The employee appealed this decision arguing that the tribunal should have regarded her grievance and grievance appeal as part of an integrated process of dismissal. This would have led to the conclusion that by the end of the process the employer did have the required knowledge of her disability.

The EAT rejected her appeal and clarified that the position is different when considering a discrimination claim as opposed to an unfair dismissal claim.  In the case of unfair dismissal, it has been long established that dismissal is regarded as a process encompassing the appeal stage and outcome. However, in discrimination claims, whether a decision to dismiss or whether a decision on appeal is discriminatory should be treated as two separate considerations.  It was therefore key that the claimant was only arguing that the initial decision to dismiss was discriminatory.

The tribunal highlighted that, where an employer’s knowledge of a disability arises between dismissal and appeal, it is important for an employee to make a separate discrimination claim based on the appeal decision. If the employee in this case had done so, instead of limiting her claim to the employer’s decision to dismiss, there may have been different outcomes. Given this possibility, employers should pay attention to any kind of disability disclosure made by staff that could imply existence of a disability and consider carefully how it may impact on any future employment related decisions.