An employer can defend a S.15 Equality Act 2010 ‘discrimination arising from disability’ claim, if it can show that it did not know, and could not reasonably have been expected to know, that the employee had the disability. In Baldeh v Churches Housing Association of Dudley and District Ltd, B was dismissed because of poor performance and her manner towards colleagues and service users. B stated during her appeal that a previous breakdown meant that her mental health could result in her saying things that were unguarded, but her appeal was unsuccessful. An ET rejected B’s S.15 claim. It accepted B was disabled because of depression but the employer did not know and could not reasonably have been expected to know that B was disabled at the time of dismissal. The EAT upheld an appeal. While the employer did not know B was disabled at the time of dismissal, it may have acquired actual or constructive knowledge of it before the rejection of her appeal; the appeal was part of the disciplinary process and the rejection of the appeal was part of the unfavourable treatment B complained about.

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