Employment Appeal Tribunal considers employer’s knowledge of claimant’s ASD

The Employment Appeal Tribunal has reviewed an original Tribunal decision to dismiss the entirety of the claimant’s claims of discrimination as the respondent was found to have no actual or constructive knowledge of claimed ASD.

The facts of the case

The claimant worked as a teacher and during her initial engagement emailed to the school principal that she believed she had aspergers syndrome.

She then left employment for a period and returned to the school after successfully applying for an assistant vice-principal post.

She frequently referred to herself as an ‘aspie’.

After a short period of sickness absence, the claimant resigned. During her notice period, a colleague had reported that the claimant had sent him a sexually explicit text message.

The claimant was entitled to statutory sick pay only. However, she incorrectly believed she was entitled to full pay for her absence. She sent a critical email to all school staff, including comments that the principal had tried to ruin her Christmas, that she was going to make a report to Ofsted, and describing herself as ‘former insights slave and now free spirit’.

The claimant sent further emails to the principal, threatening to continue to email all staff until she was paid. She then emailed staff multiple times using personal email addresses over the Christmas period to again criticise the senior leadership team.  The content of the messages escalated, including comments to ‘hurry up and pay me!’ that the principal had ‘built up a huge scam to rob poor vulnerable kids’ and that ‘if my mother was like you I would feel so much shame!!!’

As a consequence of the correspondence and inappropriate text messages, the claimant was dismissed for gross misconduct within her notice period. She was formally diagnosed with autism (ASD) twenty months after her employment terminated.

The Employment Tribunal found that these emails were unacceptable and, on occasion, amounted to blackmail. On cross-examination, the claimant admitted the emails were inappropriate but also took the position that they were truthful and her behaviour was attributable to her autism.

The Employment Tribunal decided that the respondent did not have actual or constructive knowledge of the claimant's ASD, as it was not reasonable for the principal to remember an email where the claimant suspected she had ASD three years before her dismissal. Likewise, they found there was no other medical evidence or issues that would put the respondent on notice.

The decision to dismiss, therefore, did not arise as a consequence of any alleged disability, and in any event, due to the nature of the misconduct, it was justified.

Conclusion

The Employment Appeal Tribunal found that the Employment Tribunal was entitled to conclude that there was no actual and constructive knowledge of the claimant’s disability, and this was not perverse.

While the claimant’s escalating behaviour might have put the employer on notice of a mental health issue, the EAT agreed it may not necessarily indicate a neurological condition such as ASD. However, they found that references to herself as ‘aspie’ ought to have put the respondent on notice that the claimant might have ASD.

However, this was not a strong victory for the claimant as the EAT agreed with the ET’s conclusions that the claimant’s claims of discrimination arising from disability still failed, as there was no medical evidence that at the time of sending the emails the claimant was having a meltdown, or that regular meltdowns were one of the features of her ASD. Even if that position was not correct, the EAT agreed that the conduct was so egregious and serious that even if it were linked to ASD, dismissal was a proportionate and justified response.

Practical lessons for employers

This case again gives employers some comfort about managing disruptive behaviour in the workplace. However, if an employee describes themselves as potentially neurodivergent, this should be followed up with discussions about any required reasonable adjustments.

It would also be prudent to seek a medical report to ensure that you understand the full impact of their condition at work.