Baldeh v Churches Housing Association [EAT 0290/18] dealt with a number of different issues arising out of an employee being dismissed for performance related reasons where she was found to have been suffering from depression.


B was hired by CHA as a support worker with a 6 month probationary period.
Various concerns were raised about B’s performance, with the result that on 5 June 2015 she attended a probationary review meeting, having been warned beforehand that one possible outcome was the termination of her employment.

Following the review meeting B’s employment was terminated on 15 June 2015. It appeared that the decision to terminate her employment arose from B’s behaviour and interaction towards colleagues.

B appealed on 24 June 2015. Although B had never previously mentioned that she suffered from depression, nevertheless it was clear from the appeal findings letter she did raise the subject during her appeal hearing. More pertinently perhaps, B said her depression sometimes made her say things that were unguarded.

B’s appeal was rejected.

Tribunal Proceedings

B brought a claim under s15 Equality Act 2010 (“EQA”) for being dismissed because of something arising in consequence of her disability.  S15 (1)(b) affords an employer a defence if it can show that the treatment in question is a proportionate means of achieving a legitimate aim.

Importantly, s15(2) provides an absolute defence provided an employer can show that it did not know, and could not reasonably have been expected to know, that the employee was disabled.

For the purposes of the Tribunal hearing it was accepted that B was a disabled person by reason of her depression.

Importantly, the Tribunal found that, at the date of B’s dismissal, CHA did not have actual or constructive knowledge of B’s depression. The evidence demonstrating B had raised her depression during the course of her appeal hearing was not addressed.

B’s Tribunal claim was unsuccessful.

Employment Appeal Tribunal (“EAT”)

CHA’s legal adviser argued before the EAT that B’s Tribunal claim only concerned her “dismissal” (so nothing thereafter). Furthermore, it wasn’t in dispute that one of the agreed List of Issues before the Tribunal was whether “something arising from B’s disability materially influenced her dismissal”. So there was no specific mention of the appeal.

The EAT held that the Tribunal should have considered the appeal decision as part of CHA's overall decision to dismiss B, and then decide whether it was discriminatory under s15 EQA.

The case was therefore remitted back to a different Tribunal.


The EAT clearly took the view that an appeal hearing is part and parcel of a “dismissal process”. Given that an appeal hearing can overturn a previous decision to dismiss an employee, then it must be right that the two stages of hearing (i.e. dismissal and appeal) are inextricably linked.

Presumably what should have happened at the time of the appeal is that CHA, having been put on notice about B’s depression, and the fact it may have had a bearing on B’s behaviour towards her colleagues, should have adjourned the appeal hearing in order to investigate the issue of B’s depression further, before deciding whether to dismiss or uphold her appeal. Clearly, by reference to s15(1)(b) EQA, CHA could still have upheld the decision to dismiss B, provided it demonstrated that B’s dismissal was a proportionate means of achieving a legitimate aim.
CONTACT: Christopher Filor
EMAIL: cfilor@filorsolicitors.co.uk   TELEPHONE: 01647 231475
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This publication is not intended to provide legal or other professional advice and should not be relied upon as such. Readers should take legal advice before applying the information contained in this briefing.
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