Baldeh v Churches Housing Association of Dudley and District Limited
The case of Baldeh v Churches Housing Association of Dudley and District Limited considers whether the dismissal of an employee is discriminatory where an employer did not know about a disability until the appeal hearing.
Mrs Baldeh was employed as a support worker on a six-month probation period. During this period, concerns were raised about her performance and behaviour, which were discussed with her at various supervision meetings. At the end of the probation period, she was invited to attend a review meeting at which her employment was terminated. She appealed the dismissal and, at her appeal meeting, informed the employer that she suffered depression which may have affected her performance and behaviour. The appeal officer rejected her appeal and upheld the decision to dismiss her. Mrs Baldeh brought a claim for discrimination arising from disability.
The Employment Tribunal rejected her claim concluding that the employer did not know and could not reasonably have been expected to know that she was disabled at the time of her dismissal. She appealed this decision.
The Employment Appeal Tribunal held that, whilst the employer did not have knowledge of the employee’s disability at the date of the dismissal, it could reasonably have been expected to know about it before the appeal was rejected which formed part of the unfavourable treatment alleged. It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment. The case was remitted back to the tribunal to be heard.
The learning point from this case is that the appeal process also forms part of the overall decision to dismiss an individual and it is therefore important to ensure that all information is considered before a final decision is made.
For those of you who attend our employment law seminars, you may recall that we have previously spoken about the cases of Capita Customer Management Limited v Ali and Another and Hextall v Chief Constable of Leicestershire Police which considered whether an employer’s failure to pay male employees enhanced shared parental pay amounts to sex discrimination.
In the case of Capita Customer Management Limited v Ali and Another the Employment Appeal Tribunal had held that Mr Ali had not been discriminated against when he had been paid only two weeks’ shared parental leave on full pay whilst a female employee could take 14 weeks’ maternity leave on full pay. It distinguished between the Pregnant Workers Directive, whose primary purpose was the health and wellbeing of pregnant and birth mothers and required a minimum of 14 weeks’ maternity leave be paid, and the Parental Leave Directive which focused on the care of children and made no provision for pay.
In Hextall v Chief Constable of Leicestershire Police the Employment Appeal Tribunal had held that the employment tribunal had erred in applying a direct discrimination comparator (a woman on maternity leave) to an indirect discrimination claim. The paying of only the statutory rate of pay for those taking shared parental leave did not place men at a particular disadvantage, as it applied to both sexes.
Both cases were appealed to the Court of Appeal.
The Court of Appeal has recently delivered their decision and held that it is not discriminatory to pay men on shared parental pay less than an enhanced rate paid to women on maternity leave.
In the case of Mr Ali, it held that the correct comparator for his direct discrimination claim was not a female employee on maternity leave but a female worker on shared parental leave. Given that the rate of pay for a male and a female worker on shared parental leave would be the same, he had not been treated less favourably. It further went on to say that Mr Ali could not compare himself with a woman on maternity leave because the purpose of this, after the two-week compulsory period, was not to facilitate childcare but to assist new mothers in their physical and psychological recovery from pregnancy and childbirth.
With regard to Mr Hextall, the Court of Appeal held he had not been indirectly discriminated against on ground of his sex. Women on maternity leave were materially different from men or women taking shared parental leave for the reasons outlined in Mr Ali.
