In this case, the Employment Appeal Tribunal (“EAT”) examined if an employer is obliged to inquire about underlying medical conditions that may affect an employee's behaviour before initiating disciplinary proceedings, and whether the presence of such conditions can preclude formal action. This case is particularly significant because of its focus on Autism Spectrum Disorder (“ASD”), a condition that can present itself in various ways which may, as in the current case, result in workplace behaviour that is problematic and may lead to disciplinary action.
The Claimant was employed as an English teacher and later as Assistant Vice-Principal by the Respondent, an independent SEN school. Prior to this, she had worked as a supply teacher and had disclosed that she believed she had ASD. She made references to this potential diagnosis during her subsequent employment, including referring to herself as an ‘aspie’.
After her pay was reduced following periods of sickness absence, the Claimant sent a substantial number of abusive emails to the Respondent's senior leadership team and other staff members. Despite the Respondent asking her to stop and providing an explanation as to why her pay was reduced, evidenced by excerpts of her contract and the staff manual, she continued. This led to a disciplinary hearing and her eventual dismissal for gross misconduct.
Post-dismissal, the Claimant claimed direct disability discrimination, discrimination for a reason arising from a disability, and failure to make reasonable adjustments. She argued that her ASD constituted a disability under the Equality Act 2010 and made her prone to 'meltdowns', which influenced her behaviour.
The Employment Tribunal (“ET”) first had to consider whether the school knew or ought to have known about the Claimant's potential disability (known as “constructive knowledge”) and if it did, whether it was therefore on notice that the Claimant had a disability and should therefore have investigated before taking action. The ET decided that the Respondent did not have enough knowledge to conclude that the Claimant might have ASD and therefore her claims failed. It also ruled that even if the Respondent had known about the Claimant’s condition, her conduct was so serious and egregious that her dismissal was justified as a proportionate means of achieving the aims of ensuring appropriate standards of conduct and professionalism in the workplace, maintaining respect and dignity for all employees, and ensuring the health, safety and welfare of its employees. Holding a disciplinary hearing and the Claimant’s subsequent dismissal were therefore a proportionate means of achieving those aims in the particular circumstances of this case.
Upon appeal, the EAT found that the Respondent did have enough information to be aware that the Claimant might have a disability – in particular, in using the word ‘aspie’ she indicated that she either had, or may have, ASD. The Respondent was therefore on notice of a possible disability. However, it agreed with the ET that even if the Respondent had this constructive knowledge and the Claimant had been dismissed for a reason arising from her disability, her conduct was so serious that dismissal was a justified response. The EAT also commented on the task that the ET had of determining “the position in relation to this conduct of this claimant on the evidence before it”. It agreed that there was no medical evidence which supported that the Claimant experienced “blow ups” or “meltdowns” as a feature of her ASD or that writing abusive, threatening and harassing emails arose in consequence of her ASD.
This case shows that there may be circumstances in which dismissing a disabled employee for misconduct will be justified even where it arises from their disability. However, the facts in this case were extreme, and care needs to be taken as there may, on different facts, be circumstances where dismissal for misconduct arising in consequence of a disability may be harder to justify.