In this case, the EAT held that a tribunal had been wrong to decide that an employer was not on constructive notice of the employee’s disability, but had been entitled to conclude that the conduct for which she was dismissed was not something arising in consequence of that disability, and that even if it was, the conduct was so serious that dismissal was justified.
Facts
Insights Esc Ltd (Insights) is a school for children with social, emotional, behavioural and mental health needs. Ms Kaler first worked for Insights as an English supply teacher between March and June 2013. During that time, she had mentioned to the Principal in an email that she was going through the process of being diagnosed with Asperger’s syndrome.
Ms Kaler returned to Insights on a consultancy basis in January 2017, and was appointed to one of two Assistant Vice Principal positions on 1 September 2017. She did not mention a disability or request any adjustments in her application for that role. However, she subsequently shared information about autism with colleagues, describing herself as an “Aspie”.
Following email correspondence in September 2017 in which Ms Kaler was very critical of her fellow Assistant Vice Principal, Ms Kaler’s line managers explained that her actions were unacceptable. Ms Kaler did not mention that she had Asperger’s or that she needed any adjustments.
In November 2017, a cake that a colleague purchased to celebrate Ms Kaler’s birthday at a weekly staff meeting was decorated with the message “Happy Birthday Aspie”. Ms Kaler was not offended, as she often jokingly used that name for herself.
Ms Kaler went off sick on 1 December 2017, and resigned by email on 13 December, giving notice to take effect on 31 January 2018. On 14 December, a colleague complained that Ms Kaler had previously sent him sexually inappropriate text messages. Also on that date, the Principal emailed Ms Kaler accepting her resignation.
Ms Kaler then sent a series of aggressive and threatening emails concerning an issue with her pay – some to the Principal and others to the personal email addresses of all school staff. The emails included statements such as “I will continue to send emails and make phone calls until the matter is closed in a way that is satisfactory to both parties”, and “You don't own my mouth. You either pay for it or you don't have any control over it.”
Ms Kaler refused to stop sending these emails when asked to do so, and Insights then invited her to a disciplinary hearing to take place on 2 January 2018. In one of several replies, Ms Kaler wrote “Stuff your disciplinary, stick it you know where.” When Ms Kaler later said that she was not fit to attend the disciplinary hearing, Insights went ahead with it in her absence. On 3 January 2018, Insights summarily dismissed Ms Kaler for gross misconduct.
Ms Kaler brought various employment tribunal claims, all of which failed. In relation to the claim that her dismissal amounted to discrimination arising from disability, the tribunal accepted that Ms Kaler was disabled for the purposes of the Equality Act. However, it found that Insights did not have actual or constructive knowledge of Ms Kaler’s autism. The tribunal also held that the conduct for which Ms Kaler was dismissed was not something arising in consequence of her autism. Even if it was, the tribunal concluded that the conduct was so serious and egregious that Ms Kaler’s dismissal was justified as a proportionate means of achieving Insights’ legitimate aims of ensuring professionalism in the workplace, maintaining respect and dignity for all, and ensuring the health, welfare and safety of its employees.
On appeal, the EAT held that the tribunal had been wrong to find that Insights did not have constructive knowledge of Ms Kaler’s disability. In the EAT’s view, the use of the word “aspie” by Ms Kaler in her correspondence in September 2017, and by a colleague on her birthday cake in November 2017 should at least have put Insights on notice of the possibility that Ms Kaler had autism.
However, Ms Kaler’s appeal ultimately failed as the EAT went on to hold that the tribunal had been entitled to find that her conduct in sending multiple extremely offensive and aggressive emails was not something arising from her disability. The EAT also agreed with the tribunal’s conclusion that, even if that conduct did arise from Ms Kaler’s disability, the serious content and extent of the emails, their wide circulation, their impact on colleagues, Insights’ duty of care to those colleagues, and Ms Kaler's defiant persistence when urged to stop sending the emails meant that her dismissal was justified.
What does this mean for employers?
This case provides reassurance that an employer should be able to objectively justify dismissing a disabled employee for conduct that is truly egregious, even if the conduct might potentially be considered to arise from the employee’s disability. In this context, employers must ensure that they operate a thorough disciplinary process and properly document their decisions. Note, though, that the facts here were extreme, and dismissal for conduct arising from a disability will be harder to justify as proportionate if the employee’s conduct is less serious.
