And speaking of nasty surprises brings me to the volatile case of Ms K Kaler v Insights ESC Ltd 2024, in which the Employment Appeal Tribunal considered whether an employee had been discriminated against over her “self-proclaimed” disability.

Ms Kaler was employed by Insights ESC Ltd at a school for children with social, emotional, behavioural and mental health needs, initially as a supply teacher in March 2013. She only worked for a short period of time and, in June 2013, left abruptly without giving any reason for her departure. During that initial period of time, Ms Kaler told the principal, Ms Quartey, that she thought she had ASD (Autistic Spectrum Disorder) and was “going through the process of being diagnosed”. She pre-warned Ms Quartey that she could “be literal … which can come across as rude” but asserted that this was never her intention. 

From January 2017, Ms Kaler rejoined the school as an English teacher and made various references to being ASD. In an email to the Senior Leadership Team (SLT), she outlined some theories she had about her condition, stating: “I am very likely Aspie; a reference to the condition which used to be referred to as Asperger’s.  There was at least one other member of staff who knew that Ms Kaler believed that she had ASD because when it came to her birthday, the staff member gave her a cake with the word “Aspie” on it and wrote “Happy Birthday Aspie” in her birthday card.

In December 2017, a couple of incidents occurred at work which led to Ms Kaler having a period of time off. During that time she resigned from her position saying that she was doing so because the job made her “exhausted, stressed and ill”. Ms Kaler tried to return to work out her notice period but had a run-in with two teenage pupils in which she was knocked over, injuring her leg. She again took time off sick. This time her pay was reduced because she had run out of company sick pay to cover her absence. 

When Ms Kaler realised that her pay had been affected, she accused Ms Quartey of discrimination and sent numerous offensive and abusive emails to her, to the SLT and to other staff members, both to their work and home email addresses. She threatened to report the school to Ofsted and other regulatory bodies, alleging safeguarding breaches and indicated that she would do that if her pay was not restored. 

The school wrote to Ms Kaler to explain how her pay had been calculated and why it was less than she had expected and at the same time asked her to stop emailing. Ms Kaler ignored this request and sent further and more abusive and threatening emails and texts. 

Although Ms Kaler had already resigned and was serving out her notice period, the school took the somewhat unusual step of instigating a disciplinary process and invited Ms Kaler to a disciplinary hearing. She said that she was not well enough to attend and the school went ahead with the hearing in her absence and dismissed her for gross misconduct due to “unacceptable, unprofessional, blackmailing language damaging the reputation of the school,  ignoring the requests to stop and not showing respect to the Principal and SLT”. They also referred the matter to the police who, having investigated the matter, issued harassment orders to Ms Kaler. 

Ms Kaler then brought claims in the Employment Tribunal for direct disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments. She said that her impairment made her more prone to ‘meltdowns’ and that the school had not made allowance for this. 

The ET had three issues to consider. Firstly, did the school have ‘knowledge’ of Ms Kaler’s disability. Secondly, was there a link between her behaviour (the reason for dismissal) and her disability. Third, whether dismissal was nonetheless justified on the basis that it was a proportionate means of achieving a legitimate aim. 

With regards to knowledge, the ET considered both actual and constructive knowledge. They said that Ms Quartey could not be expected to recall the initial conversation from 3.5 years previously and that the “Aspie” comment alone was not enough to give constructive knowledge particularly given her interpersonal skills and professional relationships with others. 

There was no medical evidence to link the behaviours with the disability and on any analysis, they were ‘unprofessionally, deeply offensive, insulting, threatening and blackmailing.’  On that basis, even if the behaviours had been linked to the disability, the ET were of the view that the school was justified in treating them as grounds for dismissal. The school had argued that the legitimate aims they were pursuing were to maintain levels of professionalism among their workforce, to maintain dignity at work for their employees and to maintain the health, welfare and safety of others. The ET decided that dismissal for the behaviours Ms Kaler had shown was a proportionate means of achieving those aims.  Each of Ms Kaler’s claims were dismissed. 

Ms Kaler appealed against these decisions and the Employment Appeal Tribunal reviewed the reasoning of the ET.   

The EAT decided, contrary to the views of the ET, that the school did have constructive knowledge of the disability. They considered that to defend that argument, it would have needed to show that it had done everything that it could reasonably be expected to do to find out whether Ms Kaler was disabled and it had failed to do so.

The use of the word “Aspie” indicated that Ms Kaler believed that she might have ASD put the school on notice to make further enquiries particularly given the inclusion of the term on the cake and the card by other staff members.   

However, the EAT agreed with the ET that, even if the school had constructive knowledge, and even if there was a link between the conduct and the disability, Ms Kaler’s behaviour was so egregious and serious that dismissal was proportionate and justified. Ms Kaler’s appeal was dismissed. 

This case highlights the importance of a calm reaction to abusive emails; that an employee can be summarily dismissed during their notice period; that you should consider whether behaviours might be indicative of a disability and take action to review that possibility but that if you choose to dismiss you should make sure that you have grounds to do so that demonstrate the dismissal as justified in all the circumstances of the case.