K Kaler v Insights ESC Limited

A tribunal’s refusal to postpone a merits hearing for ill health is reviewable only on Wednesbury or perversity grounds. The tribunal must fairly assess the medical material and balance the applicant’s right to a fair hearing against both parties’ rights to determination within a reasonable time. A postponement is not automatic, even where illness is established, if a resumed hearing is likely to encounter the same difficulty and materially prejudice the other party.

For Equality Act 2010 section 15, an employee’s self-description as an “aspie” may put an employer on notice that ASD is possible. But the claimant must still prove that the unfavourable treatment was because of something arising in consequence of that disability. Dismissal for seriously abusive, threatening and persistent communications may in any event be a proportionate means of achieving legitimate workplace aims.

The claimant, a teacher and assistant vice-principal, was summarily dismissed in January 2018 after sending repeated emails and messages concerning pay which the employment tribunal found abusive, threatening, harassing and, in part, blackmailing.

She brought disability claims based on ASD, including discrimination arising from disability under section 15 of the Equality Act 2010, together with other Equality Act, wages and contractual claims. Following an earlier successful appeal on disability status, a remitted tribunal held that she had ASD but dismissed the Equality Act and contractual claims. It upheld a limited wages complaint.

During the 2022 merits hearing, the tribunal refused applications to postpone the remainder of the hearing after the claimant’s evidence had concluded. The claimant appealed the hearing arrangements, the refusals to postpone, and the dismissal of her section 15 claim.

1. Appeal dismissed. The tribunal’s decisions on postponement were not perverse. Although the claimant’s fair-trial rights were engaged, the tribunal was entitled to require medical evidence of present unfitness and a prognosis. It could also give significant weight to the age of the dispute, the prejudice to the respondent and its witnesses, and the substantial risk that the same inability to complete the hearing would recur on any relisting.

2. The tribunal had taken sufficient steps to make the initial hearing arrangements fair. It was entitled to retain the usual order of evidence, particularly as the medical evidence did not show that the claimant’s ASD made giving evidence first exceptionally difficult. It made adjustments through frequent breaks, advance notice of cross-examination topics, and directions for short, accessible questioning.

3. The later GP letter established that the claimant had been unfit during the relevant days, but did not compel a postponement. The tribunal was required to engage carefully with medical evidence, but was not bound to accept its prognosis without scrutiny. It was reasonably open to conclude that the letter did not show that the pressure of a resumed hearing would not cause a further episode.

4. The tribunal erred in finding that the respondent lacked constructive notice of possible ASD. The claimant’s use of “aspie” about herself indicated that she believed she had, or might have, ASD, and therefore put the respondent on notice of that possibility.

5. That error did not affect the result. The tribunal was entitled to find that the communications for which the claimant was dismissed had not been proved to arise in consequence of her ASD. Alternatively, dismissal was proportionate to the legitimate aims of maintaining professional conduct, respect and dignity, and employee welfare. The communications were serious, widely circulated, persistent and sent despite requests to stop.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 195.
• Employment Tribunal: In a reserved decision sent on 16 May 2022, dismissed the Equality Act and breach-of-contract complaints, while upholding the wages complaint for the first three days of January 2018.
• Employment Tribunal: At a remitted hearing in February 2021, found that the claimant was disabled by reason of ASD after an earlier tribunal decision on disability status had been successfully appealed.