Misconduct and Employee Disabilities

The Employment Appeal Tribunal (EAT) case of Kaler v Insights ESC Limited [2020] UKEAT 51 offers significant guidance to employers grappling with misconduct issues involving employees with disabilities. The case underscores the importance of understanding the concept of ‘constructive knowledge’ of a disability and balancing the need for disciplinary action with anti-discrimination obligations under the Equality Act 2010 (EA 2010). Below, we explore the key points of law that employers in England should consider when managing such situations.

Background of the Case

Ms Kaler, the Claimant, was employed as a supply teacher at a school that specialised in educating children with complex needs. She disclosed to the school’s Principal in 2013 that she was undergoing diagnosis for Asperger’s syndrome (a form of autism) and considered herself disabled. After leaving the school later that year, she returned in 2017 and openly referred to herself as an ‘aspie.’

In 2018, Ms Kaler was dismissed for gross misconduct after sending numerous abusive and harassing emails to colleagues. These emails, primarily related to disputes over her salary, were sent to the entire staff despite repeated warnings to desist. She also sent inappropriate messages to a colleague. Following her dismissal, Ms Kaler brought claims for:

• Direct disability discrimination;
• Discrimination arising from disability (s.15 EA 2010); and
• Failure to make reasonable adjustments.

The EAT’s decision provides clarity on several contentious legal issues, including constructive knowledge of disability, justification for dismissal, and proportionality.

Constructive Knowledge of Disability

Under the EA 2010, employers are under a duty to make reasonable adjustments and avoid discrimination if they know or could reasonably be expected to know that an employee has a disability. This is referred to as ‘constructive knowledge.’

The Employment Tribunal initially found that the Principal could not be expected to remember Ms Kaler’s 2013 disclosure about her autism diagnosis. Furthermore, her self-description as an ‘aspie’ during her later employment was deemed insufficient to establish knowledge of her disability.

The EAT disagreed. It held that:

• The evidence of the 2013 disclosure, combined with her self-identification as an ‘aspie,’ was enough to put the employer on notice about her disability.
• Employers are required to take reasonable steps to enquire further if they suspect an employee may have a disability.

Key Takeaway for Employers: Ensure that managers and HR professionals are trained to recognise potential signs of disability and act on disclosures, even if they appear informal or are made years prior. A failure to investigate could lead to constructive knowledge being imputed.

Discrimination Arising from Disability

Section 15 of the EA 2010 prohibits unfavourable treatment ‘because of something arising in consequence of’ a disability, unless the treatment is a proportionate means of achieving a legitimate aim. Ms Kaler argued that her misconduct, characterised by the barrage of emails, was a result of ‘meltdowns’ caused by her autism.

The EAT accepted that the conduct could be linked to her disability but upheld the Tribunal’s finding that the dismissal was justified. Key factors included:

1. The school’s legitimate aim of maintaining a safe and respectful working environment;
2. The severity and persistent nature of the misconduct;
3. The fact that warnings to cease the behaviour were ignored.

The EAT found the dismissal to be a proportionate response, given the impact of her actions on the wider staff.

Key Takeaway for Employers: When dealing with misconduct linked to a disability, consider whether the treatment is proportionate to achieving a legitimate aim. Document the decision-making process to demonstrate that less severe alternatives were considered but found unsuitable.

Reasonable Adjustments

Employers have a duty to make reasonable adjustments to accommodate employees with disabilities. Ms Kaler alleged that the school failed to make adjustments that would have mitigated her ‘meltdowns’ and allowed her to work effectively.

The EAT noted that the duty to make adjustments depends on whether the employer has actual or constructive knowledge of the disability. Since the EAT found constructive knowledge existed, this aspect required careful analysis. However, the severity of Ms Kaler’s misconduct was such that the Tribunal concluded no reasonable adjustments could have prevented or justified her behaviour.

Key Takeaway for Employers: Proactively engage in discussions with employees about potential adjustments as soon as a disability is disclosed or suspected. Reasonable adjustments may include modified communication protocols, training for managers, or additional support during stressful periods.

What does this case mean for employers

This case highlights several practical lessons for employers:

1. Recognising Constructive Knowledge:
   • Disclosures made during prior periods of employment can establish constructive knowledge. Employers should maintain thorough records and review them when issues arise.
   • Casual comments, such as an employee referring to themselves in terms related to their condition, should not be dismissed.
2. Balancing Discipline and Anti-Discrimination Duties:
   • Employers must tread carefully when misconduct is linked to a disability. While disciplinary action may be justified, a proportionate response is essential.
   • Clear policies on workplace conduct and supportive mechanisms for employees with disabilities can help prevent disputes.
3. Training and Awareness:
   • Ensure managers are trained to identify potential disabilities and know how to respond appropriately.
   • Provide regular refreshers on equality law to ensure compliance and avoid claims.
4. Documenting Decisions:
   • Maintain detailed records of investigations, adjustments considered, and the rationale for any disciplinary decisions. These can provide critical evidence in the event of a claim.

Enhancing Workplace Inclusivity

Beyond compliance with the law, fostering an inclusive workplace can reduce the risk of disputes and improve overall morale. Practical steps include:

• Conducting regular equality audits to identify and address potential barriers for employees with disabilities.
• Creating open channels of communication where employees feel comfortable disclosing disabilities without fear of stigma or reprisal.
• Encouraging feedback from employees on how the workplace can better support their needs.

Concluding comments

The case of Kaler v Insights ESC Limited serves as a reminder that managing disability-related issues requires a nuanced and informed approach. Employers must strike a balance between enforcing workplace standards and fulfilling their obligations under the EA 2010. By fostering a culture of awareness, engagement, and compliance, organisations can mitigate legal risks and create a supportive environment for all employees. For employers, the key lies in anticipating potential issues, acting decisively yet proportionately, and ensuring that policies and practices align with both legal requirements and best practice standards.

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