A claimant’s employment tribunal claim was dismissed allegedly for conduct, namely sending emails in relation to a pay issue that were said to be abusive, threatening and harassing.
Ms Kaler brought Equality Act 2010 complaints by reference to her disability of ASD, Autism Spectrum Disorder. These included a section 15 arising from claim, direct discrimination, harassment and post-dismissal victimisation. The tribunal agreed that her ASD was a disability however all of her claims were dismissed, Ms Kaler appealed.
One of the grounds of appeal in Kaler v Insights ESC Limited 2024 EAT 195 was that at the start of the full merits hearing Ms Kaler had not been allowed to give her evidence last. Over the weekend after completing her evidence she had applied for a postponement of the hearing part way through on the basis that she was unwell and could not continue. She did not join the hearing on the Monday and the tribunal refused her postponement application. She later joined but following the calling of an ambulance the tribunal had to be adjourned to the next day. She was told that if she wished to renew her postponement application medical evidence would be needed in support. A further application for postponement was refused: it was not supported by medical evidence and the tribunal concluded that the situation would repeat itself if there was a postponement. Having regard to the prejudice to the respondent and its witnesses of a part-heard postponement and the fact that events predated the hearing by four years the tribunal concluded the hearing in the claimant’s absence.
A week later the claimant sent a GP letter indicating that she had had a panic attack on the Monday and needed a further two weeks to recover. The judge considered this letter but concluded that the hearing should not be postponed based on its previous reasons. A perversity challenge to the tribunal’s decision on postponement failed. The EAT held that given the likely repetition of the issues at any resumed hearing the tribunal could permissibly refuse to postpone. Even having regard to the claimant’s right to a fair trial the perversity threshold was not passed. The GP letter did not affect the conclusion reached.
Another ground of appeal was in relation to the section 15 claim which had failed. The tribunal had erred in concluding that the respondent was not on constructive notice that the claimant might have ASD however it as right to conclude that Ms Kaler’s dismissal was not something arising in consequence of disability. If it had been arising from her ASD her conduct had been so egregious and serious that the decision to dismiss her would have been justified.
This decision is interesting on a number of levels:
Postponement. It is increasingly very difficult to persuade a beleaguered Employment Tribunals Service that a postponement is justified. Any application should be made before a hearing and must be supported by medical evidence. If an application is made during a hearing robust medical evidence will be required in order to persuade a judge that the postponement is justifiable.
Section 15 claims. Disability is not a shield for misconduct. Section 15 was enacted into the Equality Act 2010 to correct the Malcolm decision which undermined the protections of people with disabilities but this wide provision is tempered by the justification defence. This means that if the employer can show that they had good reason and no less discriminatory way to deal with the issue then they will not be held liable for discrimination. Section 15 claims do not automatically succeed.
Serious misconduct. The EAT was clear in this case that even if the conduct had been found to be arising from disability it was so serious that a dismissal was merited. Employers may still be able to dismiss for serious misconduct if the behaviours warrant it. Many people think that if you are disabled under the Equality Act you cannot be dismissed or sanctioned. This is incorrect. Disability is not a shield for misconduct and the case law is clear on this.
Constructive knowledge. It is interesting that the EAT concluded that the employer did have constructive knowledge of the claimant’s ASD. This argument rarely succeeds in Employment Tribunal claims despite the guidance in the EHRC Statutory Code of Practice on Employment which states that if there are signs that a disability might be in play an employer may have constructive knowledge. Knowledge is another defence used by employers to defeat disability discrimination claims on the basis that if they did not know about the disability they could not have discriminated.
This update was written by Karen Jackson, Solicitor & CEO and a leading expert in disability discrimination in employment. An update of her Law Society Publishing book Disability Discrimination Law and Practice is due for publication in 2026.
