Disability discrimination or fair dismissal? Autistic teacher dismissed for sending abusive emails to colleagues

You start a disciplinary process because an employee has behaved in a way you find unacceptable. Do you need to ask if they have an underlying medical condition which has affected their behaviour before reaching a decision? And, even if there is, does that prevent you from taking formal action against them? 

The Employment Appeal Tribunal (EAT) in Ms K Kaler v Insights ESC Limited had to decide whether a teacher who had been dismissed for sending a large number of abusive emails to her colleagues had been subjected to discrimination arising from her disability. 

Facts

Ms Kaler worked as an English teacher and then later as Assistant Vice-Principal at a school for children with social, emotional, behavioural and mental health needs. 

She had previously worked for the school as a supply teacher and during that time she told the Principal that she believed that she had Autism Spectrum Disorder (ASD) and she was in the process of getting a diagnosis. She told her that “I am … very literal and can come across as rude, however, this is not my intention.” 

When she returned to the school a few years later, she referred to ASD during the four months she was employed. The first was in an email to the senior leadership team which enclosed information about theories of autism and said that “it [is] highly likely that I [am] an aspie!”. A member of staff knew that she believed she was autistic and had given her a birthday cake with the word “aspie” iced on the top and in her birthday card, which other colleagues saw.  

Ms Kaler had a period of absence and resigned because the job was making her “exhausted, stress and ill”. She returned to work during her notice period and was involved in an incident and went off sick to recover. Her December pay was reduced due to the amount of sickness she had had taken and she reacted furiously. She accused the principal of discrimination and sent a barrage of threatening emails to the senior leadership team and other members of staff on their work and personal accounts over the Christmas period. She also sent several text messages to them. 

She said that if she was not paid what she thought she was owed, she would contact Ofsted and other organisations and raise safeguarding concerns. She described the school as “a scam that robs the most vulnerable students of their only chance of life” and she accused the senior leadership team of bullying staff and alleged that money from the local authority was being used for their own personal benefit. 

The school responded by asking Ms Kaler to stop sending inappropriate emails. It explained why her pay had been reduced and included extracts from her contract and staff manual to back this up. 

But this didn't stop Ms Kaler and she continued to bombard staff with abusive emails. 

The school had enough and invited her to a disciplinary hearing. She was not well enough to attend and the hearing went ahead in her absence. The panel decided that her emails and text messages contained abusive, unacceptable, unprofessional and blackmailing language. She'd ignored the school's request to stop,  had brought the school into disrepute, and had not shown any respect for the principal or other staff members. She was dismissed for gross misconduct. The school also contacted the police who issued Ms Kaler with harassment orders.

Ms Kaler brought claims of direct disability discrimination, discrimination for a reason arising from a disability, and failure to make reasonable adjustments. She said that her condition mean that she was prone to having “meltdowns”.

Employment Tribunal 

The tribunal first had to consider whether the school knew, or ought to have known, that Ms Kaler had a disability (a concept known as “constructive knowledge”). To decide this, it had to examine what the school did know and whether that was enough to put it on notice that Ms Kaler might have ASD and ought to have attempted to look into it before reaching a decision about how to deal with her behaviour. 

The tribunal held that the principal couldn't be expected to remember an email sent 3.5 years before her current employment started and reference she had made to being an “aspie” in her most recent employment were not enough - particularly as there was evidence which pointed away from her having this (including her inter-personal skills and relationships with others). This meant that the claims failed.

However, it went on to consider whether her claims would have succeeded if the school had known about her disability. The tribunal said that Ms Kaler was dismissed because of the emails and text messages she sent which were “on any analysis unprofessional, deeply offensive, insulting, threatening and some of them clearly blackmailing.” She hadn't supplied medical evidence to support her case that there was a connection between her behaviour and her disability. And, even if she could prove the two were linked, her claims would still have failed: the school had been justified in dismissing her as a proportionate means of achieving a legitimate aim. 

The school's legitimate aim was to:

• Ensure that there were appropriate levels of professionalism and conduct in the workplace
• Maintain respect and dignity in the workplace for all its employees
• Ensure the health, welfare, and safety of its employees.

The tribunal said that holding a disciplinary hearing and then dismissing Ms Kaler in these particular circumstances was a proportionate means of achieving that legitimate aim. This was because she continued to send emails even after she was told to stop, she did not acknowledge that she should not have sent them and didn't give any indication that she would stop sending them.  

Employment Appeal Tribunal

Ms Kaler appealed. The EAT found that the school did have enough knowledge to put it on notice that Ms Kaler may have a disability because her use of the word “aspie” indicated that she believed she had, or may have, ASD. That put the school on notice of that possibility. 

But, it found that the tribunal had been entitled to conclude that even if the school did have constructive knowledge that Ms Kaler had ASD, and even if she had been dismissed for a reason arising from her disability, her conduct was so egregious and serious that dismissing her was a proportionate and justified response.  

It, therefore, dismissed her appeal. 

What can other schools and colleges learn from this case? 

1. If you receive an unpleasant email from a member of staff, don't immediately hit the reply button. Where you can, it's generally better to think carefully about how you respond (sleeping on it is good advice) to avoid getting embroiled in an acrimonious email exchange and, potentially, escalating the situation. 
2. It's important to have clearly worded contracts and policies. The school was able to point to the contract to show why Ms Kaler was paid less for her sickness absences. 
3. If you are contemplating taking disciplinary action against a member of staff, ask them if there is anything you need to know about their health or wellbeing before reaching a decision. Explain that this is an opportunity to flag any issues that you may need to consider. If they raise something, you may need to obtain a medical report to ascertain whether their condition is linked to their behaviour.  
4. Even if there is a link, you may still be able to go ahead and discipline or dismiss an employee, but you need to consider whether taking that step is it a proportionate means of achieving a legitimate aim? Is there another option you could take first? 
5. Make sure you have a process in place to confidentially record that an employee has or could have a disability. The Equality and Human Rights Commission's Employment Statutory Code of Practice says at paragraph 5.17 that if an employee in a position of authority such as a HR advisor or OH adviser knows of another employee's disability, their employer cannot usually claim that they did not know. It's important therefore that you have processes in place to make sure that this information can be assessed by people who are making decisions about an employee, so it does not, for example, get lost when a manager leaves. 
6. Don't generalise about how people with autism (and other disorders) will react in certain circumstances. Not all people with ASD (or what used to be called Asperger's) have the same profile of behaviours or experiences. You'll need to consider the conduct of this employee on the evidence you have.

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