Paralegal Activity: Discrimination without knowledge of disability?

In this article Will Carter looks at the recent Employment Appeal Tribunal  case of Stott v Ralli Ltd, which considered whether a disability discrimination claim can be brought when the employer only became aware of the disability after the employee’s dismissal.

Ms Stott was a paralegal at a firm of solicitors in Manchester, Ralli Solicitors. She worked there for three months before being dismissed on the basis of poor performance in January 2018, and was paid in lieu of her notice.

After her dismissal, Ms Stott raised a grievance stating that there was no evidence of poor performance on her behalf, and that her dismissal was tantamount to disability discrimination because she had raised several mental health issues with them previously. At the grievance meeting, she confirmed that her disabilities were mental health issues, anxiety, depression and a heart condition. In the meeting, she stated that her mental health affected her performance and that she had "sort of mentioned her disability" at her interview, as well as stating that the issues with sleeping that she’d had and subsequently disclosed to a solicitor at the firm gave them at least constructive knowledge of depression. The grievance was rejected and Ms Stott subsequently brought a claim to the Employment Tribunal for discrimination arising from disability.

Discrimination arising from disability is a claim brought under section 15 of the Equality Act 2010. In order to succeed with the claim, it must be shown that:

• The employer has treated the employee unfavourably because of something arising in consequence of their disability; and
• The employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

In addition to the above, the employer must have knowledge of the disability in order to discriminate against the employee. This can be actual knowledge (they know of the disability) or constructive (they could reasonably be expected to know of the disability).

In this instance, Ms Stott relied upon her dismissal as the unfavourable treatment and argued that Ralli had actual knowledge, but if this was rejected, they should have reasonably known that she was disabled.

At the Employment Tribunal, her claim was dismissed. Whilst it was agreed that the Claimant was disabled, Ralli had no knowledge (actual or constructive) and had dismissed her for poor performance, not because of her disability. Furthermore, Ralli had a legitimate aim of maintaining high standards and the decision to dismiss was a reasonable and proportionate means of achieving that aim, given the amount of supervision and assistance that had been offered to Ms Stott.

Ms Stott appealed to the Employment Appeal Tribunal on the basis that the Employment Tribunal had failed to consider whether her poor performance was something arising from her disability, and that they had failed to take account of her grievance being a key part of her dismissal – namely, had her grievance succeeded when they had knowledge, she would not have been dismissed.

The Employment Appeal Tribunal agreed with the Employment Tribunal. Whilst it agreed that the Employment Tribunal had failed to consider whether her poor performance was linked to her disability, this had never been raised as an issue until her appeal to the Employment Appeal Tribunal and so it would not have been just to consider this argument. Equally, it decided that Ralli still had a proportionate means of achieving a legitimate aim. However, it should be noted that a previous case in the Employment Tribunal had decided that knowledge changed during the appeal process and so, had the argument been raised from the outset, that point of the appeal could have succeeded.

What should you be doing now?

It is therefore very important to consider all relevant factors when dismissing, and adequately taking new knowledge into account if this is received in an appeal. Where disability is raised as an issue after dismissal, carefully consider whether the reason for dismissal could be linked to that disability, and whether it would render a different verdict if so.

Nevertheless, the best means of mitigating risk is to cultivate an open and accepting culture that embraces mental health and neurodiversity. Where individuals do not feel stigmatised by mental health, they are more likely to inform the employer early on. This will make it much more likely that you have full knowledge of the issues and circumstances when making those tough decisions. Given the increase in promoting "good mental health" in the workplace, more organisations that we are advising are adopting a mental health policy so please contact one of the Employment team if you require assistance or guidance on what to include.

Recommended reading

The full judgment from the EAT case can be read here. 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.