At first glance the cases of Kaler v Insights Esc Limited and that of Wright v Cardinal Newman Catholic School may seem fairly similar. Both concern dismissals of neurodivergent teachers ostensibly for making repeated complaints to their employers. However, one claim was unsuccessful and the other resulted in an award of £850,000 to the claimant.
Kaler case
The claimant in the Kaler case was not diagnosed as autistic but had advised her employer that she believed she was when she had worked there temporarily as a supply teacher some four years prior to the events that led to her dismissal. When she returned, she had repeated this to senior leadership. Just under a year later the claimant was signed off sick and she resigned shortly thereafter. When an issue arose relating to her pay during her notice period the claimant sent aggressive and threatening emails to the principal and other staff and refused to stop sending them when asked. A colleague also complained the claimant had sent him sexually inappropriate messages. Following a disciplinary hearing that the claimant said she was not fit to attend, she was summarily dismissed for gross misconduct.
An employment tribunal dismissed various claims including discrimination arising from disability. It held that the employer had not had the required knowledge of the disability, that the conduct the claimant was dismissed for was not arising in consequence of her disability, and even if it was, the conduct was so serious that dismissal was justified as a proportionate means of achieving the employer's legitimate aims of ensuring professionalism in the workplace, maintaining respect and dignity for all and ensuring the health, welfare and safety of employees.
The Employment Appeal Tribunal disagreed on the first point, finding that the employer should have been on notice of the condition. However, it dismissed the appeal because it held that the tribunal had been entitled to find that the behaviour did not arise from the disability, and even if it had, the dismissal was justified given the extremity of the claimant's behaviour.
Wright case
The claimant in the Wright case was a long-standing employee and the head of mathematics. He had disabilities including both autism and atrial fibrillation. He also believed that he was victimised having previously supported a former colleague with his employment tribunal claim. After raising a grievance, which was partially upheld, and making a data subject access request, the claimant was told by his trade union representative that the employer wanted to know if he would be interested in a financial settlement in return for leaving. The claimant lodged an employment tribunal claim alleging victimisation.
The claimant was then offered a generous financial settlement that he did not accept. He was then suspended pending a disciplinary investigation into whether his position remained tenable in light of what the school referred to as "an irretrievable breakdown" in the relationship between the parties. There followed a further grievance, a failed mediation, and a rejected offer of a return to what was a demoted role. The employer then concluded that a mutually acceptable resolution was not possible, and the claimant's employment was terminated.
A tribunal found that the claimant had been unfairly dismissed and victimised. It also held that the behaviours which had led to the claimant's dismissal arose from his autism. The school's arguments around justification were unsuccessful. The school had not acted proportionately. They could have taken steps to assess whether the relationship between the parties could be improved - the tribunal was not persuaded that the relationship was damaged beyond repair. The claimant was awarded compensation of £850,000.
What can employers learn from these cases?
A significant difference between these two cases is the behaviour of the claimants - the extremity of the claimant's behaviour in the Kaler case contributing significantly to the finding of justification. However, both cases highlight the importance of recognising behaviours that may signpost neurodivergence and the need to take this into account when taking decisions and dealing with the employee in question. Neurodivergence is something that can be missed by employers with many employees masking the symptoms. Even if an employee is identified as neurodivergent then it is essential that employers consider how best to deal with any particular situation that may arise, having regard to the fact that there may be obligations in terms of the Equality Act to make reasonable adjustments.
Our Essential Employment Law Webinar in March focuses on neurodiversity and overcoming workplace challenges where we will be joined by Matthew Day of Autism Initiatives. You can register for the webinar here.
