October 28, 2021

EAT upholds Tribunal decision that poor performance dismissal did not amount to discrimination

Employment Law solicitor at Holmes & Hills, Hilary Burgess, examines the recent Employment Appeals Tribunal (EAT) case of Stott v Ralli Limited involving a claim of discrimination 'arising from' disability.

A claim of discrimination ‘arising from’’ disability is unique to the protected characteristic of disability. It occurs where a person treats a disabled person unfavourably “because of something arising in consequences of” the disability. There are two potential defences for the employer, namely that the treatment can be justified, or that the employer did not know, and could not reasonably be expected to know that the individual had a disability.

In this case, the employee was a Paralegal employed by a personal injury law firm. During a meeting, she was dismissed for poor performance. Following the meeting, the employee submitted a grievance claiming that she had been dismissed because of disability and that her employer was aware of her mental health issues.

A grievance meeting was held, during which the employee stated her disabilities were mental-health related. Neither the employee’s grievance nor her subsequent appeal were successful.

The employee who represented herself in the Tribunal, brought a claim alleging that her dismissal amounted to discrimination. Her employer denied knowing about her disability at the time of her dismissal and contended it had only become aware after her dismissal during the grievance process. Interestingly and as you will learn unfortunately for the employee, she did not allege that the grievance or grievance appeal had been discriminatory.

The Tribunal dismissed the employee’s claim.  On the issue of whether her employer knew or ought to have known that the employee had a disability, the Tribunal held that the employee had not disclosed her disability prior to dismissal therefore her claim should fail.  

The employee appealed to the EAT arguing that the Tribunal had not properly considered the issues of whether poor performance was the something arising from her disability, or the justification defence. She also argued that the grievance process was an integral part of the dismissal process and therefore her employer had the requisite knowledge of her disability.

The Employment Appeals Tribunal decision

The EAT dismissed her appeal on the facts before it.

On her argument that the grievance process was integral to the dismissal process, the EAT disagreed. It held that her complaint was limited to her dismissal and not the subsequent grievance and appeal, therefore the Tribunal had not erred in this regard.  The EAT distinguished between questions for a Tribunal in an unfair dismissal claim from that of a discrimination claim. It stated that in the former case, an appeal is relevant to any determination about fairness whereas in a discrimination claim, the dismissal decision and subsequent appeal are separate distinct issues to be considered.

On justification, the EAT again disagreed with the employee and held that the tribunal had correctly applied the law in this regard.

The EAT did however uphold the Claimant’s final argument that the Tribunal had failed to make a finding about whether the poor performance was the something arising from her disability (namely anxiety and depression). Whilst it agreed with the employee on this specific ground, it was not enough to overturn the decision given its decision in respect of the other aspects of her appeal.

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