Yes, according to the EAT in the case of Stott v Ralli Ltd.
The Claimant was dismissed during her probationary period for poor performance. After dismissal she raised a grievance, claiming that she had been dismissed because of disability and that her employer was aware of her mental health issues, The grievance was rejected, as was a grievance appeal. The employee then brought a claim alleging that her dismissal was discriminatory (she did not have the 2 years qualifying service to claim unfair dismissal) but did not challenge the grievance process. The tribunal held that the Respondent did not know and could not reasonably have been expected to have known about disability when dismissing.
On appeal The EAT held that, on the facts, the case was about the Claimant's dismissal (and not the grievance). As she had not raised any issues regarding what went on afterwards in the case, the tribunal was entitled to consider if the dismissal only was discriminatory. The tribunal found that the employer is required to have knowledge (i.e. it either knew or ought to have known that the employee had a disability) of a disability prior to dismissal such that the claim should fail on these facts.
This is another victory for common sense and reinforces the position that you cannot discriminate against someone for something you are not aware of. However, the employer was lucky that the Claimant didn’t include any allegations about the grievance process etc as this may have had a different outcome as the employer was aware of disability throughout the grievance process. The EAT distinguished between issues to be considered by a tribunal in an unfair dismissal claim compared to a discrimination claim. For the purposes of an unfair dismissal claim, dismissal is regarded as a process encompassing the appeal stage and outcome. By contrast, where the claim is one of discrimination a tribunal must consider separately the allegations of a discriminatory dismissal and a discriminatory appeal (if raised). .
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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