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Is it discrimination if an employer only found out about a disability after dismissal?

View profile for Paul Burton
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Is it discrimination if an employer only found out about a disability after dismissal?

In Stott v Ralli Ltd the Employment Appeal Tribunal (EAT) decided the process of an appeal against a dismissal was treated as being separate from the decision to dismiss.

This was so that, when considering whether an employer had knowledge of an employee’s disability at the time of dismissal (for the purpose of the claim), it was not necessary to consider the employer’s knowledge during the appeal process.

Stott v Ralli Ltd

Ms Stott worked as a paralegal from October 2017, but was dismissed after only a few months due to poor performance. 

She raised a grievance after the decision to dismiss her was made, saying she had anxiety and depression which caused her poor performance. 

The employer dismissed her grievance and, having given her the opportunity to appeal the dismissal, did not uphold that either. 

She made a claim to the employment tribunal (ET) for disability discrimination.

Can an employer discriminate on the grounds of disability if they only found out about the disability after dismissal?

The ET held that Ms Stott was dismissed only because she was not performing, despite being given reasonable support and training.

While the ET sympathised with Ms Stott, agreeing that she was disabled and that this caused her performance issues, her claim failed for a number of reasons.

Mainly, because at no time prior to her dismissal did she disclose her disability to the employer and they could not reasonably have been expected to have known about it.

Ms Stott appealed to the EAT.

What did the EAT find?

The appeal was dismissed as the EAT agreed with the ET that the employer did not have knowledge of the disability at the time of dismissal and, even though they subsequently knew about it for the appeal, this was a separate action to the decision to dismiss.

Ms Stott had not made a claim of disability discrimination in relation to the decision to not uphold her appeal.

An Employment Solicitor’s View

Employment Partner Paul Burton says: “This judgment clarifies that, in discrimination claims, whether a dismissal and the outcome of an appeal against that dismissal are discriminatory must be treated as separate issues.  

Unlike unfair dismissal cases, where the fairness of a dismissal must take into account all the circumstances up to and including an appeal.

The decision is not a surprise as for there to be disability discrimination knowledge of the disability is a precursor to a successful claim.

Here the employer could show that the dismissal could not be discriminatory as they were not aware of the disability at the time the decision to dismiss was made.

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