In Kaler v Insights ESC Limited, the Employment Appeal Tribunal (EAT) was asked to rule on whether a teacher who had been dismissed for sending numerous abusive emails to her colleagues, had been subjected to discrimination arising from her disability, namely autism. 

The Claimant, K, worked for a school that instructed children with social, emotional, behavioural, and mental health needs. When K was first engaged by the school as a supply teacher in March 2013, she shared with the school’s Principal that she was “going through the process of being diagnosed” with Asperger’s syndrome and that she considered herself to be disabled.

K left the school in June 2013, following a disagreement with a colleague, and did not start working for the school again until January 2017. She was open about her autism and described herself as an ‘aspie.’

In January 2018, K was dismissed for gross misconduct after sending a substantial number of abusive, threatening, and harassing emails to colleagues. The emails concerned issues regarding her salary. Some of the emails were sent to all staff members, and she refused to stop the barrage even after she was told to do so. She also sent sexually inappropriate texts to a colleague.

Following her dismissal, K brought the following claims in the Employment Tribunal:

• direct disability discrimination,
• discrimination for reasons arising from a disability, and
• failure to make reasonable adjustments. The Employment Appeals Tribunal (EAT) disagreed with the Tribunal’s finding that the Principal could not be expected to remember an email from three and a half years ago from an employee stating they believed they had autism. The reference K made to being an “aspie” in her most recent employment was enough to put the Principal on notice regarding K’s possible disability.

K argued that her autism left her prone to having “meltdowns.” The Employment Tribunal first had to decide whether the Principal knew or ought to have known about K’s disability (referred to as Constructive Knowledge). It held that it was unreasonable to expect the Principal to remember K’s comment made in 2013, namely that she was “going through the process of being diagnosed” with Asperger’s syndrome. K’s reference to being an ‘aspie’ was also not enough to establish Constructive Knowledge.

The EAT disagreed, stating that the evidence presented by K regarding her 2013 comments and referring to herself as an ‘aspie’ were enough to put the Principal “on notice” that K had a disability. However, the EAT upheld the Tribunal’s finding that, regardless of any disability, K’s conduct was so bad and serious that dismissing her was both justified and proportional.