Heather Platt successfully defends EAT appeal

Heather Platt successfully defended an appeal in the EAT brought by an autistic teacher against an independent SEN school: Ms K Kaler v Insights ESC Ltd: [2024] EAT 195.

The former teacher was dismissed in 2018 for conduct for sending several emails over an issue in relation to her pay that were said to be abusive, threatening and harassing.  Heather Platt also acted in the Employment Tribunal proceedings: the claimant claimed that she had been discriminated against because of something arising from her autism by being dismissed when she was in the middle of a “blow up” or “meltdown” (Section 15 Equality Act 2010).

The claimant’s claim was rejected by the Central London Employment Tribunal (EJ Grewal). The claimant appealed on various grounds relating to: an alleged lack of reasonable adjustments made by the Employment Tribunal in terms of changing the order of evidence, the bundle arrangements; the Tribunal’s decision not to postpone the hearing mid trial on the grounds of ill health and whether the Respondent had imputed knowledge of the claimant’s disability because of an email sent 5 years before employment commenced when the claimant was a supply teacher and because she referred to herself as “Aspie”.

The claimant also appealed against the tribunal’s findings that the claimant had not shown that having a “blow up” or a “melt down”.  The EAT agreed with the Employment Tribunal and found that although in general neurodivergent people may experience periods of emotional dysregulation, there was no medical evidence which supported this claimant as a feature of her autism experienced “blow ups” or “meltdowns” and also that there was no evidence that writing abusive, threatening and harassing emails arose in consequence of her autism (and even if it had, the respondent’s decision to dismiss would have been objectively justified).

Application to Postpone on Medical Grounds

The EAT (Auerbach HHJ) stated at paragraph 32 of the EAT judgment in relation to the application to postpone on medical grounds:

32. In Phelan v Richardson Rogers Limited [2021] ICR 1164, at [64] – [73] I concluded from an extensive review of the authorities that there is a doctrinal difference between the approach of the EAT to these two types of challenge. A decision on a postponement application can only be challenged on perversity or so-called Wednesbury grounds. Whether the hearing arrangements were fair, including whether they sufficiently accommodated the impact of a disability, is an objective question for the appellate court, although, even there, an issue as to whether the tribunal took sufficient steps to investigate the issue of what adjustments might be needed should be considered by a Wednesbury-type approach.

HHJ Auerbach stated that the starting point is that the onus is on a party seeking a postponement on grounds of ill health to demonstrate that they are not well enough to attend. Particularly where the party says that they are not mentally well enough to attend, that will usually require medical evidence.

Parties seeking an adjournment or postponement or medical grounds are reminded of the 2013 Guidance: https://www.judiciary.uk/wp-content/uploads/2014/08/Presidential-guidance-postponement.pdf.

Reasonable Adjustments by the Employment Tribunal

The EAT noted in this case that the Tribunal had referred to the Equal Treatment Bench Book and made adjustments for the claimant not just by the frequency of breaks, but the tribunal on its own initiative asking Ms Platt to send the claimant a list of topics that she intended to cover, and in what order, as well as to frame her questions in a way that took account of the claimant’s ASD.

The full judgment can be read here.

Heather Platt is a barrister at Pump Court Chambers, her expertise is in disability discrimination and cases involving neurodivergent / hidden conditions.

20 December 2024