Information brought at the appeal stage of dismissal still forms part of the dismissal process
The EAT has held that, in relation to a claim of discrimination arising from disability relating to dismissal, it was necessary to consider whether an employer had actual or constructive knowledge of an employee’s disability at the time of the appeal against dismissal, not just at the time the decision was taken to dismiss.
In this case, the employee was dismissed at the end of her six-month probation period due to a number of concerns about her performance. At appeal against her dismissal she mentioned that she suffered from depression and that this “sometimes” caused her to behave unusually and had an effect on her short-term memory.
Originally the ET dismissed her claim stating the employer did not have knowledge that the employee was suffering from depression at the dismissal however the EAT held that the appeal decision may have been discriminatory as the employer had by then acquired actual knowledge of the employee’s disability and the performance issues may have arisen in consequence of the employee’s disability.
What does this mean for your business?
This reminds employers that an appeal against a dismissal forms part of the dismissal process and any new information that is brought at the appeal stage must be considered when deciding whether the original decision was fair.
This also highlights the importance of being alert to issues relating to disability when considering the reasons for and reasonableness of an employee’s behaviour. This can be even more difficult when employees are suffering from mental health conditions, rather than physical ones. It is advisable that the lines of communication are kept open with all employees, particularly following any changes in behaviour or performance and giving due consideration to making employees aware of the help that might be available to them if they are suffering from health issues in the workplace. Do you require support within your business with Mental Health? Our team of professionals can help – contact today on 0844 327 2293.