Disability discrimination: Dismissal was not discriminatory where the employee told the employer about her disability after she was dismissed

Published 11 noviembre 2021

The EAT has upheld a tribunal’s decision that the dismissal of an employee for poor performance was not discriminatory where the employee told the employer about her disability in a grievance raised after the dismissal.

THE FACTS

Ms Stott was a paralegal in a law firm, Railli Ltd. The quality of her work was poor – the solicitors who supervised her had to check and re-check her drafting, and she made mistakes in simple administrative tasks. She was given training and guidance and allocated tasks that were mainly administrative, but her work did not improve. Three months into her employment, the firm dismissed her. Ms Stott did not appeal the dismissal, but raised a grievance after she had been dismissed.

In Ms Stott’s grievance, she stated that she had mental health issues and a heart condition, that these conditions were disabilities which affected her performance, that she had told the firm about these conditions several times and that her dismissal was discriminatory. She alleged that she had suffered harassment and verbal abuse, and that she had been a model employee. At the grievance hearing, she said that she had “sort of” told the firm about her disability at her job interview, that she had told her manager that she was having trouble sleeping, and that this was a disclosure of her depression.

The grievance and subsequent internal appeal were unsuccessful. Ms Stott claimed in the employment tribunal that she had suffered disability discrimination, including discrimination arising from her disability.

The employment tribunal dismissed Ms Stott’s claims and she appealed unsuccessfully to the EAT. 

Of particular interest to employers was the consideration by the tribunal and the EAT of whether or not the firm knew about Ms Stott’s disability. If an employer does not know, or could not reasonably have known, about an employee’s disability, at the time of the alleged discrimination, it will not have discriminated against the employee. The tribunal found, on the facts of the case, that the firm did not, at the time of Ms Stott’s dismissal, know about her disability. Ms Stott argued that the tribunal should have taken into account the fact that the firm knew about her disability when she raised her grievance after her dismissal. However, referring to existing case law, the EAT held that in discrimination claims (in contrast to unfair dismissal claims, where an internal appeal should be considered as part of the dismissal process) claims about the decision to dismiss and the internal appeals and grievances procedures should be brought as separate claims and considered separately. Ms Stott did not bring a claim in relation to the grievance, only in relation to the dismissal. The fact that the firm knew about her disability at the grievance stage did not mean that it knew about her disability when it decided to dismiss her.

WHAT DOES THIS MEAN FOR EMPLOYERS?

In this case, the claimant did not bring a claim in relation to the grievance.  However, she could have done so: at that stage, the employer did know about her disability, and could potentially have been found to have discriminated against her. However, on the facts of this case, her claim would still have been unsuccessful, as the discrimination was (according to the tribunal and the EAT) justified.

Employers who are made aware of a disability after a decision to dismiss, during an appeal or a post dismissal grievance, must take the disability into account, making sure that the dismissal is justifiable as a proportionate means of reaching a legitimate aim, and considering if reasonable adjustments should be made. If they do not do so, they are vulnerable to claims of disability discrimination, in spite of the fact that they did not know about the disability when they made the decision to dismiss.

Ms C Stott v Railli Ltd EAT