Dismissing an employee for misconduct where disability may be a factor
Kaler v Insights ESC Ltd
The Employment Appeal Tribunal’s recent decision in Kaler v Insights ESC Limited [2024] EAT 195 highlights that even where an employees’ conduct arises in consequence of disability, an employer may still be able to justify dismissal where it is a proportionate means of achieving a legitimate aim. The case also provides an example of the circumstances in which an employer may be held to have constructive knowledge of an employee’s disability; however this will be fact specific in each case.
Facts:
Ms Kaler was an English teacher who worked at a school supporting children with additional social, behavioural and mental health needs.
In 2013, shortly after she started working as a supply teacher, Ms Kaler made her line manager aware that she believed she was autistic and that she was going through the process of getting a diagnosis. She also referred to herself as an ‘Aspie’ (a nickname sometimes used for someone with Aspergers Syndrome), and colleagues referred to her as such in a birthday card and a cake that they had made for her.
In December 2017 Ms Kaler resigned and her employment was due to come to an end in January 2018. After handing in her resignation, she was involved in an incident where she injured her leg and was advised to stay off her feet for at least a week. On the same day, a colleague reported that Ms Kaler had been sending inappropriate sexual messages.
Following a disagreement regarding sick pay, Ms Kaler sent a number of emails to all staff employed at the school alerting them to the disagreement. She also sent a number of inappropriate and harassing emails to a senior member of staff, accusing her of bullying. As a result of her actions, her employer arranged a disciplinary hearing for 2 January 2018, however Ms Kaler stated that she was not physically fit to attend the hearing. The hearing went ahead in her absence and she was summarily dismissed (i.e. dismissed without notice or payment in lieu of notice) for gross misconduct on 3 January 2018.
Ms Kaler brought several claims against her former employer, including that her dismissal was discriminatory as she was dismissed for conduct arising in consequence of her disability (i.e. it was her case that she had sent the inappropriate emails as a result of her disability) as well as direct discrimination and harassment, failure to make reasonable adjustments, and victimisation. She relied upon her diagnosis of autism spectrum disorder (ASD) (previously diagnosed as Asperger’s Syndrome). She also brought claims for unlawful deduction from wages and wrongful dismissal.
Decision of Employment Tribunal (“the ET”)
During the hearing, Ms Kaler struggled with her health. Although she was able to present her evidence, over the weekend she applied for a postponement of the rest of the hearing as she said she was not well enough to carry on. She did not attend the start of the hearing on Monday and her application was refused. She did later attend; however an ambulance was subsequently called and the ET adjourned the hearing for the day.
The following morning the ET considered a further application to postpone the hearing, however this was again refused because it was not supported by medical evidence and the ET’s view was that the same situation would likely occur again (a subsequent letter from Ms Kaler’s GP indicated that she had had a panic attack) even if the hearing were postponed. Further, it held that it would unfairly prejudice the employer and witnesses who were due to give evidence and noted that the events in question had taken place over four years earlier.
The ET dismissed all claims relating to discrimination, as well as the wrongful dismissal claim, but upheld the unlawful deduction from wages claim in part.
Ms Kaler appealed the decision on five grounds:
- Ground 1 challenged the ET’s refusal of her applications for the hearing to be postponed.
- Ground 2 challenged the finding that the employer did not have constructive knowledge of Ms Kaler’s disability (1).
- Ground 3 concerned the ET’s finding that the conduct for which Ms Kaler was dismissed was not something arising in consequence of her disability.
- Ground 4 challenged the finding that the dismissal would have been justified even if Ms Kaler’s conduct had arisen in consequence of her disability.
- Ground 5 argued that the ET had failed to make sufficient adjustments to assist Ms Kaler during the hearing, in particular in relation to the order of witnesses
Decision of the Employment Appeal Tribunal (“the EAT”):
The EAT dismissed grounds 1 and 5 as it was not satisfied that the decision not to allow the employer’s witnesses to give evidence first so unreasonable that no other reasonable ET would have made that decision (i.e. the decision was not perverse (2)).
Moving on to grounds 2,3 and 4, the EAT held that the ET had been wrong to conclude that the employer was not on notice of Ms Kaler’s disability. It noted that she had mentioned a possible diagnosis of Asperger’s, as well as referring to herself as an ‘Aspie’. Further, the ET noted that the employer had expressed concerns about Ms Kaler’s psychological state at the time she had sent the emails.
It was however open to the ET to find that the conduct which Ms Kaler was dismissed for, namely sending the sexually explicit emails to a colleague and the aggressive and harassing emails she sent to other colleagues after she resigned, was not something arising in consequence of her disability. Even if it had been, her conduct was so serious that the decision to dismiss her would have been justified as a proportionate means of achieving a legitimate aim due to the serious content of the emails, the impact they had on other members of staff and the duty of care the employer owed to its other employees. In addition, it was noted that Ms Kaler had persisted in sending further harassing emails even when she had been asked to stop. Consequently, the EAT also dismissed ground 4 of the appeal.
As in all cases, the outcome will be dependent on the specific facts and circumstances and advice should be sought in the usual way if you have concerns about a dismissal.
[1] Where an employer does not have actual knowledge, it may have constructive knowledge if it is aware of facts which should have put it on notice that an employee may have a disability, and it ought reasonably to have made further enquiries.
[2] A decision will be ‘perverse’ when it is one that no reasonable tribunal, properly directing itself on the law, could possibly have reached.