In this issue Lynn Kennedy, recently appointed HR Director at Altair, considers the issue of disability discrimination at work. With substantial experience in employee relations Lynn explains the importance of robust HR practices, and the implications of a poorly executed process.
‘Didn’t know about disability’ defence not good enough
In the recent tribunal case, Baldeh vs Church Housing Association, Mrs Baldeh was considered disabled due to clinical depression. She was dismissed from Church Housing Association at the end of a 6-month probationary period due to concerns about her conduct and behaviour towards others. She appealed to her employer at the time, but this was unsuccessful. Consequently, the employment tribunal rejected her claim, on the basis that Church Housing could not have reasonably known that she was disabled at the time of her dismissal. Furthermore it ruled that there was no evidence that her behaviour towards her colleagues was a consequence of her condition.
The EAT concluded to the contrary, finding that her conduct and disability were absolutely linked. Importantly, Mrs Baldeh had disclosed her condition in her appeal to her employer, and the rejection of this appeal therefore formed part of the unfavourable treatment that she had experienced due to her disability.
This case is a stark reminder that an appeal hearing should never simply be a “rubber stamping” exercise. Despite her short service with Church Housing Mrs Baldeh was automatically protected by her disability and declared her condition at the appeal. At this stage her employer should have reconsidered this new information and acted accordingly, exploring alternative options to dismissal. This may have taken the form of reasonable adjustments or seeking professional medical guidance regarding her condition before taking further action.
A poorly managed HR process such as this can be costly and protracted for all parties. Had Mrs Baldeh’s appeal been handled correctly it is likely that it would never have reached a formal claim.
This example also highlights the need to approach an appeal methodically and with due care and attention. Rushing through a hearing or appearing to embark on a box ticking exercise could be heavily criticised by any tribunal.
An appeal hearing is therefore an essential part of any disciplinary process when considering dismissal. This element allows any new evidence that has come to light to be considered. Any new evidence that emerges could potentially make the disciplinary decision unfair. The appeal stage also assists in rectifying any earlier procedural errors or inefficiencies. If the disciplinary process is found to be inadequate or flawed, e.g. The same person carried out an investigation hearing and disciplinary hearing, the appeal can be used to rectify any previous unfairness by conducting a rehearing of the whole case.
Conducting an effective appeal hearing
- Any appeals should be heard without unreasonable delay at an agreed time and place.
- Employees have a statutory right to be accompanied at an appeal hearing
- Appeals should be impartial and objective
- The chairperson should not have been involved in either the investigation or disciplinary and more senior than those individuals who conducted the earlier parts of the process
- Where the employee has a known disability, reasonable adjustments should be considered i.e. allowing more time, bringing a support worker or counsellor to the meeting
- Appeal decisions should be in writing stating the outcome and the reasons why
- The appeal decision is final and there is no further right of appeal
The HR team at Altair provide specialist consultancy support and expertise on a wide range of HR matters including; pay benchmarking, executive remuneration, mergers and restructures, TUPE, discipline and grievance, performance,
If you would like to talk to us about an project or an HR issue please contact: Lynn Kennedy, HR Director firstname.lastname@example.org in the first instance, or visit our website www.altairltd.co.uk/