Employment Judge DaviesMr J Crozier (instructed by counsel) for claimantDate 15 December 2021
JUDGMENT
[1]At the time of her employment by Aspiedent, Ms Hyland was disabled as a result of Asperger’s Syndrome.
REASONS
1.1 This was a preliminary hearing in public to decide whether Ms Hyland was disabled as defined in the Equality Act 2010 when she was employed by Aspiedent. The questions to be answered were:1.1.1 Did Ms Hyland have the mental impairment of Asperger’s Syndrome?1.1.2 Did it have an adverse impact on her ability to carry out normal day-to-day activities?1.1.3 Was that adverse impact more than minor or trivial?1.1.4 Had the adverse impact lasted more than 12 months?1.1.5 If Ms Hyland was disabled, what were the effects of Asperger’s Syndrome on her?1.2 At the hearing, Ms Hyland was represented by Mr Crozier (counsel). Dr Guest represented the Respondent, with support from Ms Blacow.1.3 The preliminary hearing was to decide whether Ms Hyland has Asperger’s Syndrome. Dr Guest, the Respondent’s sole Director, has autism. Adjustments were made in the preparation for the preliminary hearing and the conduct of that hearing to enable all parties to participate as effectively as possible. The adjustments were dealt with in case management orders before the hearing. Anybody wishing to give evidence at the preliminary hearing had the opportunity to provide an initial witness statement and then a second witness statement responding to anything said by anybody else. Only Ms Hyland did so at that stage. The parties then had to send each other any questions they wanted to ask a witness. Those questions were to be answered by the witness in a third witness statement. This was instead of live cross-examination at the preliminary hearing. Dr Guest did not send any questions to Ms Hyland. The parties then prepared written arguments and had the opportunity to respond to each other’s arguments in writing. Both parties produced detailed written documents. Dr Guest and Ms Blacow also produced witness statements at this stage. I explained in case management orders that they would not be allowed to give evidence at the preliminary hearing. I confirmed that I would consider the statements when deciding what questions to ask at the preliminary hearing.1.4 Two rooms were used for the preliminary hearing. Dr Guest, Ms Blacow and a supportive companion were in one room, which was connected to the other by live video link. There was a Tribunal clerk in each room. Ms Hyland gave evidence. The only person to ask questions was EJ Davies. Some of those questions were based on points made by Dr Guest in her written arguments. We had a break every thirty minutes. Dr Guest was allowed to record the preliminary hearing. After the hearing, the parties had the chance to make any corrections or additional comments in writing. They could then respond in writing to anything said by the other party. Again, both parties did so. Dr Guest’s documents include some matters of new evidence. It is now too late to introduce new evidence and I have not taken it into account. I have, of course, considered her detailed arguments with great care. The Facts3.1 I have read all the written arguments and evidence, as well as considering the oral evidence Ms Hyland gave.3.2 Dr Guest says that Ms Hyland’s evidence was fundamentally dishonest and should not be believed. I do not agree. There were matters on which Ms Hyland’s evidence was inconsistent and there were matters where she accepted she had not been truthful in the past. I deal with some of them below. However, those matters did not cause me to disbelieve Ms Hyland generally. I found that she was doing her best to give honest and accurate oral evidence.3.3 Dr Guest also makes a number of points based on her knowledge and understanding of autism. However, as I made clear in my case management order on 17 May 2019, Dr Guest cannot act as an expert witness in this case. Expert witnesses must be independent and objective. The Respondent is Dr Guest’s company. She is not independent and objective. I have based my findings of fact on the written and oral evidence before me. Asperger’s Syndrome3.4 I start with the question whether Ms Hyland has (and had) the mental impairment of Asperger’s Syndrome. I find that she does and did.3.5 Ms Hyland is currently 25 years old. She attended mainstream primary school and secondary school. Part way through her schooling she was given a Statement of Special Educational Needs. After her GCSEs she went to College and then did a degree at Leeds Beckett University.3.6 The evidence before me includes the following:3.6.1 Ms Hyland was assessed by the Special Assessment Team for children with Complex Communication Difficulties in 2001 when she was 8 years old. The Team consisted of Dr Parry, Consultant Community Paediatrician, Ms Westeman, Consultant Clinical Psychologist, and Ms Falkingham, Senior Speech and Language Therapist. Ms Hyland was assessed at Glen Acre House in September 2001 and the assessors carried out a school visit in October 2001. Ms Hyland’s developmental history and communication skills were discussed with her parents. Ms Hyland was observed in class. The assessors also spoke to her class teacher.3.6.2 Ms Westeman assessed Ms Hyland using the Wechsler Intelligence Scale. She reported a highly significant discrepancy between Ms Hyland’s verbal and performance IQs. She said that, in contrast to her non-verbal skills, Ms Hyland had difficulties with most aspects of language use, particularly understanding and verbal reasoning. Ms Westeman reported that, although Ms Hyland performed within the range expected for her age on the verbal tests, the quality of her language was different from that of other children.3.6.3 Ms Falkingham produced a report in May 2002. She described difficulties experienced by Ms Hyland in the areas of comprehension, expressive language and communication skills. She reported that in the opinion of the Special Assessment Team Ms Hyland’s difficulties with language, communication and social understanding were consistent with a diagnosis of autistic spectrum disorder. She recommended that Ms Hyland have extra help and support in school.3.6.4 Dr Parry also prepared a written report, which was dated July 2002. She discussed a range of skills and milestones. Among other things, Dr Parry said that Ms Hyland tended to be isolated, struggled to understand appropriate interaction and had to be warned of changes around the house. In school she was frequently not on task and achieved very little work. If she did not get her own way she might trip or hit other children. Dr Parry concluded that Ms Hyland had the impairments of social interaction, communication and imagination, together with somewhat rigid repetitive patterns of behaviour that were diagnostic of a disorder in the autism spectrum. She reported that the Special Assessment Team agreed that Ms Hyland’s difficulties met the diagnostic criteria for Asperger’s syndrome.3.6.5 Mr Vegeris, Senior Educational Psychologist, assessed Ms Hyland in school in June 2002. He spoke to her parents and teachers, reviewed the other assessment information and provided written advice in July 2002. He also assessed Ms Hyland using the Wechsler Intelligence Scale. Her scores were different from those recorded by Ms Westeman the previous year. Mr Vegeris did not find a significant discrepancy between Ms Hyland’s verbal and performance scores. However, that did not lead him to question the diagnosis of Asperger’s Syndrome. Mr Vegeris advised that Ms Hyland had high levels of verbal and practical intelligence but was not able to achieve her full potential in school because of her difficulties with social interaction, attentional focus and independent writing and spelling skills. Her diagnosis of Asperger’s Syndrome meant that those difficulties would require a programme of intervention to support her learning and social skills and to help her achieve a sense of belonging within her peer group. In addition, he reported that Ms Hyland’s preference for routines and her resistance to change made it difficult for her to cope with unexpected events in school and that time would be needed to help her prepare for changes within the school day. Mr Vegeris advised that Ms Hyland met the criteria that would in practice lead to a Statement of Special Educational Needs being made by the local authority. That appears then to have taken place.3.6.6 The written evidence indicates that Ms Hyland had input from Mr Ling of the Autism Outreach Team after this.3.6.7 Reports from a review in March 2005 refer to a range of issues. Ms Hyland was experiencing depression. She was having particular problems with social interactions and changing classrooms. She was very tired. She was having difficulty with support staff whom she felt treated her like a baby. She was reluctant to accept advice of others and would become rude if they made suggestions. She had lashed out on a couple of occasions. The Autism Outreach Team advised requesting more support for her.3.6.8 Ms Hyland’s Individual Education Plan from December 2008 referred to her diagnosis of Asperger’s Syndrome, and difficulties with social interaction, independent writing and spelling. It set out the following information from Part 2 of her Statement of Special Educational Needs: Faye has Asperger’s syndrome. She is a pupil with high levels of verbal and practical intelligence. However, she is unable to achieve her full potential in school because of her difficulties with social interaction, attentional focus and independent writing and spelling skills. Faye prefers routines and is resistant to change, this makes it difficult for her to cope with unexpected events in school. She finds it difficult to remain on task and in working and playing cooperatively with other children her own age. She will interact with others but prefers to play with younger children. Faye has significant difficulties with the comprehension of abstract language, she interprets things literally. She has difficulty understanding verbal language and has marked impairment of her ability to interpret facial expressions and body language. She frequently misinterprets things that people have said or done and is left feeling bewildered and frustrated. Faye has temper tantrums and is teased because of this, she feels that she does not “fit in” with other children and tends to be isolated, her self-esteem is affected by this. She has an extensive vocabulary and excellent memory which gives her the ability to talk at length about topics of interest to her. She has problems in communicating her own feelings and recognising the feelings and needs of others. Faye’s attention span is short for activities she has not chosen. She finds it difficult to remain on task at school. She is unable to organise herself or her work. She has a specific difficulty with written work and her spelling and handwriting are inconsistent and below the level which would be expected on the basis of her spoken language.3.6.9 After taking her GCSEs Ms Hyland went to College to do a BTEC course. A transition assessment again referred to her diagnosis of Asperger’s Syndrome and difficulty with social interaction. It said that the Autism Outreach worker would work with her to support her transition to College.3.6.10 After College Ms Hyland studied Product Design at University. She received support through the Disabled Students Service. She continued to experience difficulties with depression and anxiety at that time.3.6.11 The evidence before me included a letter written by Mr Vegeris in December 2017. Ms Hyland’s mother had contacted him by telephone about the Advice he had written in 2002, no doubt in the context of this Tribunal claim. Mr Vegeris did not carry out any further assessment of Ms Hyland. He wrote that, on reflection, he felt the reference to “temper tantrums” in Ms Hyland’s Statement should have been amended in the light of her emerging pattern of autism. He said that it would have been more accurate and appropriate to describe her as having “a pattern of social and communication difficulties which were consistent with a diagnosis of autism, including finding it difficult to communicate emotions in large groups and classes.” Mr Vegeris made some remarks about Ms Hyland’s experience at University. However, that was evidently based on what he was told rather than on any further assessment. I have not placed weight on it. I do note, however, that he refers to ASD as a “lifelong condition.”3.6.12 Finally, and again in the context of these proceedings, Ms Hyland referred herself to the Leeds Autism Diagnostic Service in March 2018. Among other things, she wanted to confirm her autism diagnosis. Ms Hyland was seen by Dr Davidson, Consultant Psychiatrist, and Ms Straker, Autism Nurse. Dr Davidson wrote a report. He had reviewed paperwork provided by Ms Hyland from the various educational and health professionals who had assessed her during her childhood. He wrote that this evidence clearly showed that she had autism, which was verified by several different professionals. Dr Davidson said that he and Ms Straker had noted a number of factors consistent with autism during their appointment with Ms Hyland. These included: variable eye contact, reduced facial expressiveness, minimal use of gesture, a tendency to talk at greater length than necessary, literalness, and cognitive rigidity. Dr Davidson and Ms Straker agreed that Ms Hyland had an autism spectrum disorder. This was based on past history, presenting complaint and mental state examination. At the end of his report Dr Davidson said that Ms Hyland had told him that she thought she had largely “overcome” her autism in her early 20s, only for many of the autistic traits to become more prominent again this year. Dr Davidson said that sometimes autistic people (particularly females) can learn coping or “camouflaging” strategies as they get older, but at times of stress/transition/sensory overload it is more difficult to apply these strategies, and the autism appears to become more prominent.3.7 The evidence before me therefore shows that Ms Hyland was diagnosed with Asperger’s Syndrome at about aged 8 following an assessment by suitably qualified experts. She had a Statement of Special Educational Needs after that. She had regular input from the Autism Outreach Service and a range of other support throughout her education. The diagnosis of Asperger’s Syndrome was not subsequently questioned or changed. That diagnosis has recently been confirmed by Dr Davidson and Ms Straker. I accept, of course, that their report was obtained at least partly for the purpose of these proceedings. Nonetheless, they too are experts in the field and their view was based on their observations and the previous assessments. All of that evidence satisfies me that Ms Hyland has the mental impairment of Asperger’s syndrome.3.8 Dr Guest argues that Ms Hyland has been misdiagnosed. Her argument is principally based on reviewing the material from the time in the light of her own experience of Ms Hyland. She concludes that there was a different explanation for Ms Hyland’s behaviour and presentation. Dr Guest selects particular aspects of the contemporaneous reports to support her conclusions. For example, she refers to a part of Ms Falkingham’s report where she described Ms Hyland using language with her peers in a rather controlling way, telling them what to do and becoming distressed when they failed to respond in the way that she wanted; and to another part where Ms Falkingham said that Ms Hyland was going through a phase of referring to other children as “enemies.” Dr Guest also refers to a part of Dr Parry’s report where she referred to Ms Hyland being teased and laughed at for “her temper tantrums.” Dr Guest suggests that this type of comment shows that Ms Hyland’s difficulties with social interaction were caused by her wanting to control people and have her own way and not by autism. However, Dr Guest is not medically qualified. She has not examined Ms Hyland and she was not involved at the times Ms Hyland was examined and diagnosed. She has identified particular parts of the reports and reached a conclusion based on those. The experts at the time reached different conclusions, taking those matters into account. Dr Davidson appears to have seen the same information and he did not question the diagnosis either. Nothing in the evidence or arguments persuades me that it is appropriate to go behind the diagnoses that were made by suitably qualified experts who examined Ms Hyland at the time. I find that she had and has Asperger’s Syndrome. Effects and Impacts3.9 That brings me to the evidence about the effects of Asperger’s Syndrome on Ms Hyland.3.10 As mentioned above, Dr Guest says that there is evidence of Ms Hyland being dishonest on more than one occasion and argues that this means that her evidence generally should not be believed. When she gave her evidence, I asked Ms Hyland about some specific examples:3.10.1 Dr Guest said that she spoke to Ms Hyland about her PIP application in January 2017. During that discussion, she expressed concern that Ms Hyland would not qualify for PIP because her social skills were so good. Ms Hyland responded along the lines, “Don’t worry. I know how to act autistic.” When she gave her evidence Ms Hyland agreed that she had said this to Dr Guest. I asked what she meant by it. She explained that she had spent time and effort overcoming her autism because she needed to fit into the world. She said that she put all her effort into the goal of functioning as a “normal” (i.e. neurotypical) person. She hoped that people could not tell she was autistic. That was her “acting normal.” One of the downsides was that people could not tell she was autistic. When it came to something like PIP she did not want the assessors to see how well she could cope, because most of the time she could not. Otherwise she would not get the support she needed. “Acting autistic” meant that she was trying not to act normal. I accepted Ms Hyland’s explanation of what she meant.3.10.2 Dr Guest said that when Ms Hyland applied to Access To Work for support she had to tell them when she had started work at the Respondent. This caused her anxiety because when she had got her job and signed off benefits she had told DWP a later start date. She was worried that the DWP benefits department would find out she had lied. She asked Ms Blacow to lie for her. Ms Hyland said that this was “kind of” what happened. She said she had volunteered with the Respondent for a week or two before they decided to pay her. There was to be a month between starting and getting paid. She (wrongly) thought that if she told the Job Centre that, they would stop paying her and she would have no money for a month. Therefore, she told them that her start date was the date she got her first payment from the Respondent. She acknowledged that this was “not the best thing” she had done but said that she was panicking that she would not be able to live without money. She said that when she made her Access to Work application she gave, “Pretty much” that explanation to Ms Blacow. She did not want her to do anything or lie, she just wanted her to be informed.3.10.3 Dr Guest also said that when Ms Hyland missed the deadline for submitting her PIP form she phoned up and said that she had not received the form. When I asked Ms Hyland about this she said that she could not really remember but she did apply late. She said that it did sound like something she might have done. She said that it was probably “not the best way to paint me” but she did not think it was something the average person would not do on occasion if they had struggled to meet a deadline.3.11 I asked Ms Hyland about Dr Guest’s argument that these examples showed that her evidence should not be believed. She said that everybody lied and fudged the truth. She was not trying to rip someone off or cause harm or distress. She did not go outside the realms of what people would reasonably do.3.12 The question for me is whether these examples of occasions when Ms Hyland was less than straightforward mean that I should disbelieve her evidence generally. I find that they do not. People do sometimes lie or fudge the truth for all sorts of reasons. That does not necessarily mean that nothing they say can be believed. In this case, Ms Hyland has accepted that she was less than straightforward on certain occasions. She has explained why. Her admissions about these matters indicated that she was prepared to give truthful evidence even where that was not in her interest. She gave evidence about a range of matters for more than an hour and a half. I found that she was generally doing her best to give accurate evidence. There were some mistakes, inaccuracies and inconsistencies. That is common when people are trying to remember events. I did not find that as a result her evidence generally lacked credibility or that she should not be believed at all. Instead, it was necessary to consider the evidence relating to particular matters as it arose. I therefore turn to the evidence about particular effects of Asperger’s Syndrome on Ms Hyland.3.13 In her witness statement, Ms Hyland said that her autism gave rise to five main challenges: difficulty with/resistance to change; rigid thinking/resistance to new ideas; relating to others; sensory sensitivity; and communication. When dealing with those challenges, she gave examples of how every day activities were affected. There was overlap between the different challenges, particularly “relating to others” and “communication”. Also, some every day activities were affected by more than one challenge. I therefore summarise below the key evidence in the order it was given, before setting out my conclusions on the challenges faced by Ms Hyland and the impact on day to day activities arising from her autism. Change3.14 Ms Hyland said in her witness statement that she finds it difficult to process change. Sudden or unexpected change to her routine, established rules or the environment without prior notification or planning can be overwhelming and lead to feelings of anxiety. She said that this was one of the reasons why she could not use public transport. She described difficulty in using buses and, to a lesser degree, when driving.3.15 I asked her to explain how she experienced that difficulty. She described a time when she worked for the Respondent and somebody had made changes to a document she had created. She said that when she saw it she “freaked out.” It was like a very acute onset anxiety. She felt like she had a big, heavy lump in her throat, very anxious and wound up. It made her brain freeze. She flung the papers onto the table and walked off. She thought she hid in the elevator and calmed down after about 15 minutes.3.16 I asked her whether she travelled by train. She said that she did not, because she had never lived in a place where that was easy access to the train so it was not really an option. I asked her about messages she had sent Ms Blacow in January 2017. In those messages she said that she was having car trouble and, later, that she had had to catch a train. She agreed that she had used the train on that occasion. Her mother had driven her to the station. She agreed that this was an unexpected change of routine. She said that she was with her mother who suggested catching the train and helped her to work out that she could do that. It was a very stressful situation. She agreed that she had caught the train on the odd other occasion. She did not think she had done it on her own. She had caught the train with Ms Blacow once, which was planned in advance. Some messages in the file indicated that Ms Hyland had caught the train on her own on at least one other occasion. I asked her whether the reasons she said made it difficult to catch a bus also applied to catching trains. She explained that on a bus there was more going on. Buses were very “juddery”, they vibrated and rattled. You were swinging about and did not feel physically secure. Trains tended to be more enclosed. She would have her own space and could control her own area. It was a lot easier to move around if she wanted to. Ms Hyland’s social media pages showed that she has travelled abroad and successfully coped with delayed journeys.3.17 In her claim form Ms Hyland said that she had moved house in 2017 and had coped well with that. In other documents she had indicated that the move of house was more difficult. I asked her about this. She said that she did cope well because a lot of effort went into the move. She knew the street because family friends lived on it. It was an easy distance to her parents’ houses. She spent time planning and coordinated with the landlord. In her written arguments, Dr Guest disputed that version of events.3.18 Ms Hyland also gave evidence that she had worked in a wine bar. She started in August 2010 as a weekend job for 4 or 6 hours. When she was at University she came back sometimes. She was a glass collector: she would walk round, pick up glasses, put them into the machine and take them back. The woman who ran the bar was a family friend. Over time Ms Hyland started re-stocking the bar and cleaning. She never served behind the bar. She helped with some jobs in the kitchen sometimes. I asked her what would happen if there was a change at the bar. She said she knew the staff. When new staff members started she already knew them in passing. If she knew she was going into a situation she could get her mind ready to deal with it. If there was something that threw her, for example the staff having an argument, she went into the kitchen and called her mum who calmed her down. Rigid thinking/resistance to new ideas3.19 The next challenge Ms Hyland described in her witness statement was difficulty with accepting new ideas that conflict with or challenge an existing idea. She said that once she has been taught a method or particular way of doing something, she sees it as the right or only way to do something and finds it nearly impossible to consider alternatives. She has a car and is able to drive in a familiar area along a route she knows well with little issue. If she needs to drive somewhere new she becomes stressed and anxious. The more time she has to prepare the better. For a particularly important journey like a job interview she will rehearse the trip.3.20 I asked her how she experienced this difficulty with accepting new ideas. She said that if she was used to working with something and it updated or changed it was “jolting.” It made her have to freeze, to stop and stare at it. If her mother changed a paragraph in a document she would not be able to read it and understand what her mother was saying because it was not written in the way she understood. She would have to calm down from that, pick apart what had been put and rearrange it into a way she could work with it before she could deal with it.3.21 Ms Hyland said that she could be creative and come up with creative ideas. The trouble she had was with changing an idea once she had got to it. On her degree course she had to make a scale model of an aluminium chair. She took that to mean that the chair had to be aluminium. Her tutor tried to persuade her to make a model out of wood but she could not get her head around that. She fell behind because it took her a long time to make a model out of aluminium.3.22 I asked Ms Hyland about her LinkedIn profile. In that, she says that her most valuable ability is to be able to deal with challenges with calm, persistence, logic and a little creativity. Her willingness and enthusiasm to learn is described as her greatest attribute. She told me that this was an exaggerated view. LinkedIn was an online CV and she was trying to promote herself. She was talking about her strengths on a day when she was very much on form. She did not accept that this showed she had no difficulty with new ideas or change. She said that she did find it difficult but still wanted to learn, which was a challenge. It was easier to deal with changes that were planned and expected. Sometimes she would be good with change because she had spent a long time learning how to be. The LinkedIn description was what she was sometimes, not what she was every day.3.23 Dr Guest had said that Ms Hyland showed little interest in the online diary at Aspiedent. Ms Hyland said that a change in a diary was not too difficult for her: “You have a calendar and you change it.” It was a change that was more personal or invested that she found difficult.3.24 I asked Ms Hyland about an occasion when Dr Guest said that she drove to an autism fair without difficulty. Ms Hyland said that she did drive to the show but that it was a “nightmare.” She explained that she would not normally tell Dr Guest about all the planning she had done. She said that the plans for the fair kept changing. On the Sunday a colleague who was supposed to go with her pulled out. She called Ms Blacow that day. It was in the early days and this was her first proper job. She decided she would drive down on her own. It was not the best of experiences. She was tired, stressed and wound up. She did not take in much. She did force herself to do it with a lot of help from her mother as well.3.25 The written evidence included texts between Ms Hyland and Ms Blacow from days when Ms Hyland was late for work. I asked how she coped on those occasions. She said that one of the ways was sending a message to Ms Blacow. She agreed with Ms Blacow’s description, that she would come in and bang around and flop on the desk. She said that she would take some time to recover and get her “work head” on. Relating to others and Communication3.26 Ms Hyland also gave evidence about what seemed to be to related areas of challenge. First, she said in her witness statement that she had difficulty interpreting and understanding people’s body language and the meaning behind what they say. She has worked hard to try to lessen the impact of this difficulty but it takes extreme effort to do so. In a stressful or emotive situation it is more difficult to use her coping strategies. Secondly, Ms Hyland said that it takes her much longer than others to understand new subject matters. She said that she needed more time to process information. She struggled with the subtleties of language. As a child this meant she was very literal in her understanding of others. Because of all she has learnt, as an adult she can communicate more fluently. On a good day the average person may struggle to tell that she is autistic. That takes a significant amount of concentration and energy. She can deliver sarcasm, metaphors and jokes but occasionally still misses these coming from others. The more frustrated, anxious or stressed she becomes the less able she is to keep up her “normal act” and the more obviously autistic she becomes. That is because the concentration and energy she uses is redirected to deal with her stress. Ms Hyland’s social media pages show her engaging in humorous exchanges with friends.3.27 I asked Ms Hyland to give me an example. She said that job application forms ask questions to which they do not really want to know the answer. If they ask how you would work in a team, her instinct is to say that one person does one part one does another and they then come together. However, she now knows that what the authors really want to know about is things like team dynamics. This is hard in writing but harder still in an actual interview. She had been in an interview where somebody asked her a question. After she had answered the interviewer told her that this was not what they meant. She has bought books about how to do interviews and has learnt techniques. It is a memory thing. However, if she is stressed she cannot do it. Ms Hyland explained that if she is in a conversation with somebody she is considering a lot of things: is she looking at them, their tone of voice, body language, eye contact, is she being relevant, is she pulling weird faces? On top of that she has to start working through answers to questions. She might have to re-word a question to confirm she is answering the right one. It is a lot to do at once. She does miss things and she falls apart sometimes. Sensory sensitivity3.28 Ms Hyland also said in her witness statement that she is sensitive to emotional behaviours emanating from others. If someone is angry, upset or irritated she becomes unnerved by it. She also struggles with noises involving the mouth and nose, for example sounds of chewing, heavy breathing or blowing the nose. This was part of the reason she had difficulty using public transport. She also had sensory issues that related to touch, the sensation from showers, brushing her teeth, certain fabrics and the textures of some foods for example. She enjoyed heavy rock music and attended concerts with her father. She said that she found the loud music helped to mask the sounds of bodily functions from others around her. She said that throughout her life she had developed numerous adjustments and coping strategies to deal with these matters without becoming overwhelmed. However, if her adjustments or strategies failed, or too many issues presented themselves at once she would become overwhelmed and evolve into a shutdown.3.29 I asked Ms Hyland about a time Dr Guest said that an autistic colleague had a meltdown. Ms Hyland said that the colleague was not angry or upset. It was not that emotional. It was like a “brain crash” where you have to “stop and reboot.” She tried to give the colleague the advice she would give herself, suggesting he take a break and have a cigarette.3.30 I asked Ms Hyland whether mouth noises were an issue when she worked in the wine bar. She said that the music pretty much covered it up. If it was quiet and empty and someone was eating crisps for example she would go into the next section.3.31 I asked her about going to rock concerts. I asked whether a lot of the challenges she describes would be present at a rock concert. She described compellingly her enjoyment of rock concerts. She said that you could not hear noises from the mouth at a concert. The music was so loud and she could feel the beat vibrating in her body. She knew how people were going to behave and she tended to stay near the back or at the sound desk. She would look straight forward at the stage. She would go with her father or her two good friends.3.32 I asked Ms Hyland about what she said to Dr Davidson about feeling that she had largely overcome her autism in her early 20s. I asked how she had experienced that. Was it that the challenges were no longer present, that she was coping better or something else? She said that it was a bit of both. She was in a good routine, which reduced the challenges. She had more support and had less to contend with. There were still difficulties but she felt more secure in what she was doing.3.33 I have taken into account Ms Hyland’s written and oral evidence, the file of documents, including the medical evidence, and all of Aspiedent’s written arguments about the evidence. Drawing all those matters together, my findings are as follows.3.34 I do think Ms Hyland has overstated some of the challenges or difficulties, particularly in her written evidence. One example is the statement in her witness statement that she “cannot use public transportation.” But I did not find that she was making her whole account up. It seemed to me that she had written a statement that included every conceivable issue and sometimes exaggerated the position. However, when she was asked about it in her oral evidence, she accepted the points that were made. I found her oral evidence unrehearsed. When I asked for particular examples, the answers she gave were vivid and convincing descriptions of her experiences in her own words. Just as she described for her PIP application, it seemed to me that in her written statement she was keen to ensure that the picture that was presented showed the worst of what she can be like. I also noted that the reports prepared when Ms Hyland was first diagnosed with autism and subsequently supported her account of particular challenges arising from her autism.3.35 I find that Ms Hyland can have difficulty with change to her routine, established rules or the environment. That does not mean that every change causes her difficulty but some do. She minimises the impact of that difficulty by planning for change where possible. Unexpected changes can make her feel very stressed and can make her feel very anxious and wound up. She may need to take time out to calm down. She may “freak out”, for example flinging papers down and walking off. She may be able to continue with the changed approach, but that might be stressful and difficult for her. The medical and other reports indicate that Ms Hyland experienced difficulty with change during childhood, and I accept that she still does, in the way I have described.3.36 Ms Hyland can also experience difficulty with accepting new ideas or ways of doing things. This seemed to me to overlap with her difficulty with change. Again, that is not with every new idea. It is more likely to be something personal or something that she is personally invested in. She may resist making a change (for example pressing on with the aluminium model chair). She may find the new approach “jolting” and may “freeze” and need to take time to calm down before she can deal with the issue. She will often seek help from her mother to deal with such a situation. The content of her LinkedIn profile does not cause me to reject her evidence about this. I accept that it is a marketing tool in which Ms Hyland seeks to promote herself, painting a positive picture of her at her best.3.37 Ms Hyland can experience difficulty relating to others and communicating. She finds it more difficult than a neurotypical person to interpret and understand people’s body language and the meaning behind what they say. She has learnt how to do so to a significant extent, but it does not come naturally to her. That means it takes effort. When she is stressed or anxious, she is less able to sustain that effort and therefore less able to understand and interpret.3.38 Ms Hyland does experience some sensory sensitivity. Although her witness statement referred to a number of issues, it was clear that the main one was sensitivity to other people’s mouth and nose noises. She does not have a sensitivity to noise generally, and indeed enjoys the sensory experience of being at a loud rock concert. That loud noise masks other people’s mouth and nose noises. Ms Hyland will go somewhere else if someone is making mouth or nose noises.3.39 Overall, Ms Hyland has a range of strategies to assist her in meeting the challenges posed by her autism. Sometimes, with the assistance of those strategies, she is able to function well. That still takes planning and effort. At other times, for example when she is more stressed or anxious, or where too many issues present themselves at the same time, she functions less well. At the extreme, this can be overwhelming and lead to a shutdown. This has happened much more frequently since the end of Ms Hyland’s employment. At the time of her employment I find that a shutdown was a rare occurrence for her.3.40 The combined effect of the above challenges is always present and affects Ms Hyland as she navigates each day. The evidence dealt with some specific day to day activities that it affects. I accept that Ms Hyland is unable to travel by bus. Her evidence about that was compelling. It is not just that she has trouble with change, but also that she does not feel secure, the sensory experience is uncomfortable and she is unable to move around or control her space. Ms Hyland is able to travel by train, but that causes her stress and anxiety. She needs to plan such journeys in advance if possible. Ms Hyland can drive, but she needs to plan or rehearse journeys where possible. Travelling by train or car are more difficult for her than a neurotypical person.3.41 Ms Hyland’s communication difficulties affect her ability to have a conversation and to interact with colleagues. She finds it difficult to fill in application forms and take part in interviews. Her difficulty with change and resistance to new ideas also affect her ability to interact with colleagues and to follow instructions. Sometimes she finds those things more difficult than others. I have described Ms Hyland’s difficulties in the present tense However, apart from the fact that she has more frequent shutdowns now than she used to, all of these difficulties were present at the time of Ms Hyland’s employment by Aspiedent. Legal Principles4.1 Claims of discrimination are governed by the Equality Act 2010. By virtue of section 6, a person has a disability if she has a physical or mental impairment that has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Section 6 is supplemented by schedule 1 of the Equality Act 2010, and by Guidance made by the Secretary of State called “Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011)” (“the Guidance”). The Tribunal is obliged to take the Guidance into account.4.2 The Tribunal should ask:4.2.1 Did the person have a mental impairment?4.2.2 Did it affect her ability to carry out normal day-to-day activities?4.2.3 Was the effect substantial?4.2.4 Was it long-term?4.3 The Tribunal must consider the position at the time of the alleged discrimination.4.4 The Guidance advises that “mental impairment” can include autistic spectrum disorders.4.5 The Guidance gives examples of normal day-to-day activities. They are things people do on a regular or daily basis. They include having a conversation; travelling by various forms of transport; and general work-related activities, such as interacting with colleagues, following instructions, and driving. The Tribunal should focus on what the person cannot do, or can only do with difficulty, and not on what they can do. There is more detailed advice in section D of the Guidance.4.6 A substantial adverse effect is one that is “more than minor or trivial.” It is one that goes beyond the normal differences in ability that may exist among people. There is more detailed advice in section B of the Guidance.4.7 An adverse effect is long-term if it has lasted more than twelve months. Application of the law to the facts5.1 Applying those principles to the findings of fact above, I deal with the issues in turn.5.2 For the reasons set out above, I have found that Ms Hyland did have the mental impairment of Asperger’s Syndrome.5.3 For the reasons set out above, I have found that Asperger’s Syndrome did have an adverse effect on Ms Hyland’s ability to carry out normal day-to-day activities when she was employed by Aspiedent. The adverse effects are described more fully in the findings of fact. The effects of her Asperger’s Syndrome were present as she navigated each day. They particularly affected her ability to travel by bus, train and car and her ability to communicate and interact with others. She could not travel by bus. She travelled by train only with difficulty and she travelled by car with greater difficulty than a neurotypical person. She found it more difficult than a neurotypical person to have a conversation, fill in a form or be interviewed. She found it difficult to deal with some change or new ideas.5.4 I find that the adverse effect of Ms Hyland’s Asperger’s Syndrome was substantial. That means it was more than minor or trivial. I have taken into account the cumulative effect of the difficulties. As I have explained, sometimes Ms Hyland coped better than others. However, even when she coped better, the difficulties were still present. It was taking effort and energy from her to manage. Her difficulties went beyond the differences that exist between people. She did not travel by bus. If she travelled by train, that needed preparation, planning and/or reassurance. If she travelled by car, that needed planning and preparation and sometimes rehearsal. Holding a conversation required constant ticking off of a mental checklist. Interacting with colleagues might require her to respond to change or a different way of doing things. Sometimes Ms Hyland coped less well, and the adverse effect was more significant. Overall, I have no doubt that at all times it met the threshold of being “substantial.”5.5 The adverse effect of Ms Hyland’s Asperger’s Syndrome had clearly lasted more than 12 months.5.6 The effects of Asperger’s Syndrome on Ms Hyland are set out in the findings of fact above. Conclusion 6.1 Ms Hyland met the definition of disability in the Equality Act when she was employed by Aspiedent. That means she can bring her claims of disability discrimination in the Tribunal. The parties will need time to process this judgment. I will therefore wait two weeks and then write to the parties to outline the next steps. RESERVED JUDGMENT
Conclusion
[1]The following complaints are well-founded and succeed:1.1 The complaints of failure to make reasonable adjustments for disability relating to(1) the arrangements for the review meeting on 22 March 2017 and(2) the making of changes in working conditions;1.2 The complaint of unfavourable treatment because of something arising in consequence of disability relating to Ms Hyland’s dismissal;1.3 The complaint of victimisation.[2]The following complaints are not well-founded and are dismissed:2.1 The complaints of failure to make reasonable adjustments for disability relating to(1) the use of Concrete 5 and(2) not using Adobe;2.2 The complaints of unfavourable treatment because of something arising in consequence of disability relating to (1) the three emails on 22 March 2017 and (2) the response to the 23 March 2017 email; and2.3 The breach of contract complaint.[3]There will be a separate remedy hearing. Case management orders will be made separately to prepare for it.
Findings of fact
[1]Suitability of work environment in terms of sensory differences.[2]Modified instructions to take into account differences in ways of thinking. For example, using diagrams wherever possible can be very helpful in some cases.[4]Allowing more time for processing of information and not insisting on immediate decisions.[5]Careful change management.[6]Making sure work colleagues are aware of differences and take these into consideration. What reasonable adjustments should be considered for Autistic Employees? The main requirement is acceptance of their autistic differences. The most important adjustments involve ensuring that their work environment is suited to their particular sensory issues and that you have made sure that they fully understand what is required. Their job may need to be modified so that they spend more time doing tasks at which they excel and less time doing tasks they struggle with. They may need support to handle social interaction within the workplace. 4.3 Dr Guest wrote an article about the reality of employing somebody with autism in 2016. She wrote, “It is generally the case that you will get an unpleasant reaction from your employees if you change something at short notice. However, if you plan, inform and manage the change correctly, they know what to expect and anxiety levels won’t rise too much. This approach will benefit all your employees; not just autistic employees.” 4.4 Dr Guest was in the business of providing expert advice about getting the best out of autistic employees and making appropriate adjustments for them. She clearly had expertise in that. However, as we have said above, Dr Guest is herself autistic. She says in her witness statement that it is quite severe and has a very significant impact on her everyday life and work. It clearly does. Having academic expertise in getting the best out of autistic employees and being able to advise other people about that, is not the same as managing your own autistic employees. In managing her own autistic employees, Dr Guest was doing so as a person with autism herself. As explained below, the Tribunal found that Dr Guest was not always able to put into practice herself the advice she gave to others. Dr Guest was supported by Ms Blacow. She is Dr Guest’s support worker, funded through Access to Work. She is also Aspiedent’s Operations Manager. Ms Blacow does not have autism. She does have OCD and this can make navigating day to day life complex, confusing and stressful for her. 4.5 Aspiedent is a very small company. In October 2016 it had three paid staff members. Some of them were autistic. 4.6 Fuller information about Ms Hyland’s autism is in the Disability Judgment. The Tribunal noted that:4.6.1 She can have difficulty with change to her routine, established rules or the environment. She minimises the impact by planning for change where possible. Unexpected changes can make her feel very stressed, anxious and wound up. She may need to take time out to calm down. She may “freak out” for example flinging papers down and walking off. She may be able to continue with the changed approach but that may be stressful and difficult for her.4.6.2 She can have difficulty accepting new ideas or ways of doing things. This is more likely with something personal or in which she is personally invested. She may resist making a change. She may find the new approach “jolting” and may “freeze” and need to take time to calm down before she can deal with the issue.4.6.3 She can have difficulty relating to others and communicating. She has learnt to interpret and understand body language and the meaning behind what people say to a significant extent. That takes effort. When she is stressed or anxious, she is less able to understand and interpret.4.6.4 She has some sensory sensitivity. This is mainly to other people’s mouth and nose noises. She will go somewhere else to avoid them.4.6.5 Ms Hyland has a range of strategies to assist with meeting the challenges posed by her autism. Sometimes she is able to function well, although that takes planning and effort. At other times, for example when she is more stressed or anxious, or when too many issues present themselves at the same time, she functions less well. At the extreme this can be overwhelming and lead to a shutdown. 4.7 There is a lot of disagreement about whether Ms Hyland experienced an autistic reaction to events or whether she simply had an angry or emotional outburst. Aspiedent place emphasis on Ms Hyland’s use of different terminology such as meltdown, panic attack, anxiety attack. The Tribunal starts by saying that it is inappropriate to refer to Ms Hyland’s reaction under any circumstances as a “temper tantrum.” She is an adult and was an employee of Aspiedent. Even if her behaviour was not an autistic response it is patronising and disrespectful to refer to it in that way. However, the Tribunal was satisfied that Ms Hyland’s behaviour was an autistic reaction to events. We explain that below when dealing with particular incidents. The Tribunal did not think that Ms Hyland’s use of different terminology meant that she was not experiencing an autistic reaction. In some situations her functioning was impaired. Those situations included times when she was more stressed or anxious, so panic or anxiety was likely to be a feature of them. Sometimes the impairment was overwhelming and might be described as a meltdown or shutdown. Ms Hyland’s employment 4.8 Ms Hyland was introduced to Dr Guest by a mutual acquaintance in May 2016. They had a discussion about autism and employment. Ms Hyland told Dr Guest something about her own autism. They kept in touch. This led to Ms Hyland doing some voluntary work for Aspiedent when she finished her degree. She started volunteering on 24 October 2016. 4.9 After a week, on 31 October 2016, Dr Guest offered Ms Hyland paid work for Aspiedent. Aspiedent could only pay Ms Hyland for two days’ work. Dr Guest wanted her to work two days per week paid and two days per week as a volunteer. Ms Hyland could not afford to do that. She was travelling a long way to volunteer and Aspiedent were not paying her travel expenses or any other expenses. However, she offered to do one day per week volunteering. She was happy to do so. That was agreed. She therefore started working two days per week as a paid employee and volunteering one day per week. She did the same work on all three days. She never expressed any concern about working one day per week as a volunteer. She never asked to be paid for that day. The Tribunal found that the contract between Ms Hyland and Aspiedent was a contract to work two days per week for the agreed rate of pay. They agreed separately that she would volunteer one day per week. She did not have any contractual or other entitlement to be paid for the day on which she volunteered. 4.10 Ms Hyland said that she became a paid employee on 31 October 2016. Dr Guest said that it was 1 November 2016. We do not need to decide who is right. It does not affect the things we have to decide. 4.11 When she started volunteering and then working at Aspiedent, Ms Hyland did not have a formal discussion with Dr Guest or Ms Blacow about her autism, how it affected her and what adjustments she would need. She did not ever have a formal discussion about those things. Aspiedent’s approach seems to have been much more unplanned. Changes or adjustments were made in response to particular issues or events. That is how Ms Hyland described it and that fits with what Ms Blacow said in her witness statement and what Aspiedent said in its initial response to the claim: Aspiedent is highly skilled at making reasonable adjustments for employees quickly as and when needed. They are usually put in place automatically once a person’s different ways of thinking and sensory issues are identified. Reasonable adjustments are also made via specific requests from staff, an event occurring which highlights their difficulties, or in response to a member of staff describing their autistic issues. Website 4.12 When the Claimant started volunteering, Dr Guest asked her to help with Aspiedent’s website. In fact it had two websites at the time, one aimed at employers of autistic people and one aimed at autistic employees. They were written by Dr Guest in quite technical language. They were not user-friendly. Ms Hyland’s degree is in Product Design. She told Dr Guest that she was not an expert in web design but she agreed to do some work on the websites. 4.13 The existing websites were created using Concrete 5 Content Management System software but they were not hosted on Concrete 5. 4.14 Ms Hyland was not familiar with Concrete 5. She was familiar with WordPress, a different Content Management System. Ms Hyland started work on the websites straightaway. She found Concrete 5 difficult to work with and slow. She could not get the results she wanted. She found guidance on YouTube, but that did not really help. She asked Dr Guest for help and Dr Guest spent an hour or two teaching her about Concrete 5. The next day Ms Hyland made a mistake and was worried she had permanently damaged the website. She asked Dr Guest to fix it. Dr Guest gave her some more help with Concrete 5. 4.15 Ms Hyland had lots of ideas for Aspiedent’s website but felt that she could not learn the programme fast enough to get them down. She knew that WordPress was capable of achieving what she was thinking of. She wanted to use WordPress to work on Aspiedent’s website and get all her ideas down. She explained this to Dr Guest. She said that she would carry on learning to use Concrete 5 as well. Ms Hyland’s evidence was that Dr Guest reluctantly agreed that she could use WordPress. She confirmed this in her oral evidence. Dr Guest’s evidence in her witness statement is that she did not give Ms Hyland permission to use WordPress. She says that she told her she could use online tutorials, ask Dr Guest for help, or storyboard her design on paper, Word or a drawing package. We return to that conflict of evidence below. 4.16 There is no dispute that Ms Hyland did work on the Respondent’s website using WordPress. Indeed, she started doing so while she was still only a volunteer. Ms Hyland had agreed with Dr Guest that she would use her own laptop for doing Aspiedent’s work. She used her own laptop to work on the website. She realised that she was unable to use the full editing features of WordPress without paying. She paid £30 of her own money to access those features on 27 October 2016. A domain name came with the purchase, so Ms Hyland chose Aspiedent.net. The alternative was to have a random string of characters. Ms Hyland registered the domain/account to her own Aspiedent email address. She used Aspiedent’s information and details wherever they were required by WordPress. 4.17 What this meant was that Ms Hyland was developing a “beta” website for Aspiedent, using WordPress to create the content, but also with WordPress hosting the website. The Tribunal accepted the Claimant’s evidence that she was simply trying to help Aspiedent. She did not have any ulterior motive and she was not trying to damage or disadvantage Aspiedent in any way at all. 4.18 After that Ms Hyland worked on the website on WordPress and regularly showed Ms Blacow her progress. There is no dispute that she told Ms Blacow that Dr Guest had given her permission to use WordPress. Aspiedent pointed out that when there was a problem in March Ms Hyland did not say to Dr Guest that she had already given her permission to use WordPress. 4.19 The Tribunal considered these events when deciding whether or not Dr Guest gave Ms Hyland permission to use WordPress. We found on the balance of probabilities that she did. We placed particular weight on the fact that Ms Hyland was entirely open with Ms Blacow. She showed her the draft website regularly and she told her that Dr Guest had given her permission to use WordPress. Ms Blacow worked very closely with Dr Guest. She was her support worker. Anything Ms Hyland said to Ms Blacow was likely to be shared with Dr Guest. The Tribunal considered it highly unlikely in those circumstances that Ms Hyland would have shown Ms Blacow the website and told her Dr Guest had given her permission to use WordPress if she had not. 4.20 However, it seemed to the Tribunal that there was probably a miscommunication or misunderstanding. We found that Dr Guest was agreeing to the use of WordPress to develop and create content. She was not agreeing to the use of WordPress to host the website, and she was not agreeing to the registration of a domain name and the development of a beta website hosted by WordPress. But she did not say that explicitly and Ms Hyland did not draw that distinction. So, Dr Guest may well have thought she had agreed to one thing and Ms Hyland may have thought she had agreed to something else. 4.21 The Tribunal also thought that Ms Hyland might have paid for WordPress and registered the domain name before Dr Guest agreed to her using WordPress. Her original claim form said that Ms Hyland tried to use Concrete 5 for a few weeks but struggled with it. She explained her difficulties to Dr Guest and Dr Guest gave her permission to use WordPress. That implied that it was a few weeks before Dr Guest gave permission. Her witness statement and evidence at the hearing indicated that the conversation with Dr Guest was before she paid for WordPress. That would mean it had to be during her week as a volunteer. The Tribunal thought that was unlikely. We found that more likely than not Ms Hyland paid for WordPress and registered the domain name before Dr Guest agreed to her using WordPress. She was not trying to steal the website. She was trying to be helpful and make progress on the website in the way she knew. The Tribunal did not think that this discrepancy meant that none of Ms Hyland’s evidence could be trusted. She wrote her statement four years after the events. Memories do fade over time. People can also come to believe that things happened differently from the way they actually happened. The Tribunal saw that in Dr Guest’s and Ms Blacow’s statements too. 4.22 Ms Hyland’s evidence was that she thought WordPress was more user-friendly and more appropriate than Concrete 5. She thought Concrete 5 was outdated. She said that this was part of her autism. Her rigid thinking and resistance to new ideas resulting from her autism led her to conclude that WordPress was the “right” way to build the website. This made it difficult for her to consider and learn a different way of doing it. The Tribunal found that Ms Hyland’s aversion to using Concrete 5 and her determination to use WordPress were connected to her disability. As set out in the Disability Judgment, her autism means that she can have difficulty accepting new ideas or ways of doing things and may resist making a change. Her approach to Concrete 5 and WordPress was exactly that. She was having difficulty accepting Concrete 5 instead of the software she was familiar with, and she resisted doing so. Adobe 4.23 When Ms Hyland started working at Aspiedent she had a subscription to Adobe. This had been paid for by disability support services when she was a student. It was a twelve-month subscription, which expired some time in December 2016. Until the subscription expired, Ms Hyland used Adobe to produce flyers, business cards, social media images and other material for Aspiedent. Dr Guest knew she did. Ms Hyland said that she asked Dr Guest more than once about buying Adobe once her subscription expired. Dr Guest told her that Aspiedent could not afford to buy Adobe. In her witness statement Dr Guest agreed that Ms Hyland had asked her more than once to buy an Adobe subscription for her. She said that she had told Ms Hyland that they could not afford it and that there was alternative free software that was adequate for Aspiedent’s needs. The Tribunal found that this is what happened. When Ms Hyland had her own subscription to Adobe, Dr Guest was happy for her to use it. When Ms Hyland asked Dr Guest to buy a subscription, Dr Guest told her that Aspiedent could not afford it. That was the reason Dr Guest did not want Ms Hyland to use Adobe. 4.24 In Aspiedent’s written arguments, they said that Ms Hyland had asked that they buy Adobe for her on several occasions and that they refused, “normally giving several reasons, of which the cost was one.” That was different from Dr Guest’s witness statement, and the Tribunal found that it was inaccurate. 4.25 There was an occasion in December 2016 after her Adobe subscription ran out, when Ms Hyland used Microsoft Publisher to produce a leaflet. She found it a challenge but succeeded. She was proud of the achievement. 4.26 The Tribunal had no doubt that Ms Hyland’s preference to use Adobe was again part of her resistance to change caused by her autism. Working environment 4.27 Ms Hyland’s evidence was that the working environment at Aspiedent was chaotic. Dr Guest’s evidence was that both she and Ms Blacow had poor organisational skills. In her witness statement Ms Blacow talked about people coming and going at different times and ad hoc team meetings being held. She described the environment at E-Spark as having a constant stream of different people inhabiting the office. The Tribunal found that the working environment reflected that. It was chaotic. 4.28 Ms Hyland suggested a whiteboard to tell everybody what was going on every two weeks. This was introduced and was quite successful. The whiteboard could only work if it was complete and up-to-date and that was not always the case. For example, it did not tell Ms Hyland about changes in the last week of her employment. 4.29 Dr Guest also introduced an online diary at a later stage. That was an adjustment for another autistic member of staff. It was not always complete and up-to-date. It did not refer to changes in the last week of Ms Hyland’s employment either. 4.30 When Ms Hyland first started working for Aspiedent, its offices were at E-Spark in Leeds. This was a shared space start-up hub. In January 2017 they were told that they could not continue there. Dr Guest said that this resulted in a “frantic” hunt for suitable, affordable office space. It was a “very stressful” time for everyone. They kept people up-to-date with a list of the options being pursued on the whiteboard. In the end, Aspiedent were offered two free spaces – an office at Leeds Trinity university and an open-plan space at Search Labs. They moved in on 15 February 2017. In the lead-up there was lots of upheaval and uncertainty. For example, on 31 January 2017 Ms Blacow texted Ms Hyland and suggested they met at a café to work because she was not sure if they were still allowed to work at E-Spark. On Sunday 5 February 2017 Ms Blacow texted Ms Hyland telling her to work at ESpark the next day. On Sunday 12 February 2017 Ms Hyland texted Ms Blacow asking if she had any idea where she was coming to work the next day. Ms Blacow told her to come to E-Spark. She said that they had been allowed to stay until Monday. They might have to “camp in the library” Tuesday and Wednesday, and would be able to move into Leeds Trinity on Thursday. It was at that stage that the possibility of space at Search Labs was first mentioned to Ms Hyland. They did indeed work in the library for two days. The Tribunal found that the office move was the opposite of planned, managed change. Ms Hyland said that all this uncertainty was difficult to cope with and caused a great deal of anxiety. The Tribunal accepted her evidence. This would be difficult for anybody to cope with, and more so for Ms Hyland because of her autism. 4.31 After the move, Ms Hyland worked at Search Labs. She was mainly the only person there. Dr Guest worked at Leeds Trinity. 4.32 Ms Hyland’s case is that Aspiedent had a practice of making unexpected changes to working conditions, including staffing changes and surprise visitors. Her evidence about staffing changes and visitors was mainly about the final week of her employment. She said that she arrived on Monday 20 March 2017 to find that CN had suddenly left employment and that KM had started. She was not told about this in advance. The other evidence supports that. The extract from the online diary made no mention of CN leaving. It mentioned KM starting on the Tuesday. In addition, Ms Hyland said that Ms Blacow and a number of other people were at the office on Monday 20 March 2017 for a meeting. Ms Hyland said that she was not told about that in advance. Again, the other evidence supports that. It was not in the online diary or on the whiteboard. More generally, there are a number of texts between Ms Hyland and Ms Blacow in which Ms Hyland asks where Ms Blacow is going to be working on a particular day or Ms Blacow apparently updates Ms Hyland last-minute about her whereabouts. 4.33 The Tribunal concluded that the working environment was disorganised and often changed at short notice. Staff were not clearly and carefully told in advance what was going to happen and when. Sometimes that happened but not always. Staff would not necessarily know on a day-to-day basis who was going to be in the office. Ms Hyland’s house move 4.34 Ms Hyland moved from Holmfirth to Leeds on 18 March 2017. Ms Blacow and Dr Guest knew about the move. Ms Hyland planned for it carefully in advance and coped well with it as a result. However, it added to the change that Ms Hyland was dealing with at around this time. Dr Guest’s change of approach 4.35 There was another change in Ms Hyland’s working environment in February 2017. Dr Guest said in her witness statement that on 15 February 2017 marketing “finally clicked” in her head. This meant that she was now in a position to evaluate Ms Hyland’s work and she evidently started to do so. She gave one example about a video. She had previously agreed Aspiedent should buy the video to use on its website, but after she understood about marketing she changed her mind. She and Ms Hyland disagreed about that. She described Ms Hyland’s response as a “temper tantrum”. Ms Hyland sent an email about it, which said, “WELL I THINK YOU SHOULD THINK AGAIN ELIZABETH!”. Dr Guest said this was offensive and disrespectful. This was an example of the difference between Dr Guest having academic expertise in how to manage autistic employees, and herself being able to manage an autistic employee in practice. 20-24 March 2017 4.36 That is the background to the events of 20-24 March 2017. 4.37 On Monday 20 March 2017 Ms Hyland arrived at work after moving house over the weekend. There were lots of people at the office for a meeting, which she had not been told about in advance. CN had left his job and KM had started. She had not been told about that either. 4.38 At one stage on Monday 20 March 2017 Ms Blacow told Ms Hyland that she had to attend a review meeting on Wednesday. She did not say what it was about. In her witness statement Dr Guest said that it was to address performance issues. This was because Ms Hyland was “refusing to listen to any instruction regarding marketing” and was treating Dr Guest with, “complete contempt and showing no respect for any of my knowledge or experience – not even IT knowledge and experience (I was a lecturer in computing for 14 years).” Dr Guest said that they were “about to start a capability procedure, which would have ultimately led to [Ms Hyland’s] dismissal if she did not respond appropriately to this.” The Tribunal noted that in her second witness statement answering Ms Hyland’s questions, Dr Guest said that the original intention of the meeting was “smoothing out misunderstandings” and that there were “no plans at all at that time to engage in more formal proceedings with [Ms Hyland]. Those two statements are inconsistent. Aspiedent say that Ms Hyland had never needed an agenda or written details of what was to be discussed and they did not see why this meeting was any different. 4.39 Ms Hyland took part in the Monday meeting with the other people who were at the office. There was discussion of marketing and Aspiedent’s website. Ms Hyland opened the website she had been working on on her laptop and showed everybody. They talked about what they liked and did not like about it. Ms Hyland explained that she accessed it using her Aspiedent email address. She said that Dr Guest, Ms Blacow and anybody else could be given administrator access using their Aspiedent email addresses. They would need a WordPress account to do that. 4.40 This was when Dr Guest realised that the Claimant had created a website using the domain name Aspiedent.net on her WordPress account. Later that day she emailed Ms Hyland: Please can you just give me loading details? I don’t want a WordPress account. If you are using a password that is personal to you, change it so we can both use it. 4.41 Ms Hyland replied about an hour later: I am a little uncomfortable with this as it would give you access to my personal site and info as well, not because I think you would ever look at it deliberately but it would show you. I’m just trying to change a few settings to separate them and I’ll send it to you. 4.42 Aspiedent say that Ms Hyland did not show Dr Guest the website in front of everybody. They say that her original claim form says something different. The claim form says that there were several people in the office that day and it says that Ms Hyland showed Dr Guest the website. It does not specify whether the other people were there at the time. However, in her own witness statement Dr Guest says that when she first discovered about the website she was furious but had to bottle it in because there were a lot of people in the office at the time. The Tribunal concluded that Ms Hyland did first show Dr Guest the website along with other people in the meeting. 4.43 On Tuesday 21 March 2017 Dr Guest was not in the office. Ms. Hyland was working in the morning. At about 1:30pm Dr Guest replied to Ms Hyland’s email from the previous day: This is one of the reasons why you should not have done what you have done. Work stuff should NEVER get mixed up with personal stuff. We need to move your site to Aspiedent ASAP. The other option is that I make you a WordPress site and you copy it over manually bit by bit. Your choice. Whichever needs to be done quickly. Why not just give me access and then as soon as this is sorted out, you can change the password? Would have been so much easier if you had been even prepared to try out Concrete 5 – but that is part of a wider issue we can discuss tomorrow. 4.44 Ms Hyland was having her lunch and did not see the email before Dr Guest sent another one just after 2pm. She wrote: That is now a subdomain called fayewordpress.aspiedent.org which has WordPress ready installed. Please just transfer your site to here. You can use this site to try out ideas for the website in future. … The actual website will be Concrete 5. Perhaps harder to design, but I much prefer its editing capabilities to those of WordPress. 4.45 Dr Guest then sent another email 20 minutes later to say that there was now a Concrete 5 development site. She would load some themes into it. It was an updated version so it might be a bit more robust than it was. She did not mind doing the design once they had agreed what it should be, but she was not the best person to generate the content. 4.46 Ms Hyland replied at 2:30pm. She explained that she had used WordPress because it allowed someone to manage many different websites (work and personal) through their own account without mixing them up. Making a new WordPress site and having Ms Hyland copy the content over bit by bit would still mean that Ms Hyland had to access the current site, her personal site, and the new site through her WordPress account. Dr Guest would still need a WordPress account too. This would also not be a quick solution. Ms. Hyland said that she would like to remind Dr Guest that she spent the best part of a month trying to learn how to work Concrete and had a couple of discussions with her about how difficult she found it and that in her opinion it was not suitable for online marketing. She concluded: Either way I removed the content from my website so you can now access it. 4.47 She provided her email address and a password. The password was a combination of words followed by “123”. The password was incorrect. The correct password was the same combination of words without any numbers after it. Ms Hyland used the password with the numbers for something else. They were written next to each other in a list in her diary. The Tribunal accepted her evidence that she put the wrong password in her email by mistake. This may have been partly because she was stressed and anxious, but the Tribunal did not think that was because of Ms Hyland’s autism. An employee without autism might well have been stressed and anxious too and might easily have made the same mistake as Ms Hyland. 4.48 Aspiedent say that Ms Hyland gave the wrong password three times and that emails showing this are missing. They say that they deleted all the emails, so they do not have copies. Ms Hyland said that she only sent the password once. None of the emails or other documents that the Tribunal saw refer to three wrong passwords being given. If Ms Hyland had given the wrong password three times, we would have expected Dr Guest’s email on Wednesday (see below) to say so. Nobody is suggesting that she gave two more incorrect passwords after that. The Tribunal found that she only gave the incorrect password once. 4.49 Dr Guest replied 10 minutes later to say that she did not much care for Ms Hyland’s explanation. Aspiedent stuff could not stay on her site and one way or another it had to move. She said: If you had only asked for a WordPress site to play with, I would have given you one – which would have saved both of the time we are BOTH now spending to sort this problem. I have just made you a WordPress site to play with. Please transfer it over. We will discuss more tomorrow (would help if you could brand it properly at the same time). 4.50 During the day on Tuesday Ms Hyland asked Ms Blacow what the meeting on Wednesday was about. Ms Blacow told her it was just a review and nothing serious. She did not say that it was the start of a capability procedure or that it was to talk about performance concerns. Ms Hyland was not given an agenda or any information about what was to be discussed at the meeting. 4.51 On Wednesday 22 March 2017 at 8am Dr Guest sent Ms Hyland three emails in quick succession. The first asked her to start transferring the .net site to the WordPress site Dr Guest had made and told her to make this “top priority.” The second told Ms Hyland that the details she had given Dr Guest did not work. Dr Guest asked for the correct details and said, “Failure to comply in this matter will result in termination of employment.” The third told her that all content she generated for Aspiedent belonged to Aspiedent and that by refusing to provide access she was in breach of her contract. It ended, “You are in serious trouble already, please don’t make it worse.” 4.52 Ms Hyland received all three emails on her phone as she arrived at work. Her evidence was that when she read them it immediately triggered a panic attack and a meltdown. She struggled to breathe. She fled to a quiet room and sat down in a corner to calm down. The only thing she could focus on was that if she did not give her passwords to Dr Guest immediately she might lose her job. She did not know she had given her the wrong password. In her state she got her diary out of her bag, opened her note of all her passwords, and tossed it across the desk to Dr Guest before retreating back to the corner. She did not throw the diary at Dr Guest. 4.53 Dr Guest agreed in her statement that Ms Hyland got the emails on her phone when she arrived. She acknowledged that the emails upset Ms Hyland, but said that she was “furious” not anxious. Dr Guest said that Ms Hyland went into one of the side rooms and Dr Guest sent Ms Blacow in to calm her down. Dr Guest said that Ms Hyland, “threw her book with passwords in it at me so I could get the correct password.” Ms Blacow said in her witness statement that Ms Hyland was “angry” about having to give Dr Guest the site password. She said that she did not have a meltdown or a panic attack. She said that she banged around the office quite a bit that morning and eventually took herself off to the bathroom. Dr Guest and Ms Blacow waited for her to come back. She eventually entered the room again and “immediately launched her hardback book of passwords straight at [Dr Guest]. Luckily she missed.” Ms Blacow said that she was “shocked” and “couldn’t believe it.” Ms Hyland then went into the side room and Dr Guest told Ms Blacow to go and be with her. Ms Hyland calmed down after about twenty minutes. 4.54 The Tribunal found that when she saw the emails Ms Hyland had a panic attack and a meltdown. She struggled to manage her emotions and needed time to calm down. She reacted in this way because of her autism. She did not throw a hardback book at Dr Guest. She tossed her diary across the desk open at the page of passwords so that Dr Guest could get the correct password. She sat in the corner of the side room for twenty minutes or so before she was calm again. 4.55 We made that finding for the following reasons:4.55.1 Ms Hyland has the disability of autism. It affects her in the ways set out in the Disability Judgment. As described above, there had been a build-up of stressful events and changes during the preceding weeks and during that week. Ms Hyland was already worried about the website. Then she got three emails, one of which told her she might lose her job and one of which told her she was in serious trouble. She thought she had already given Dr Guest the correct password. These events were likely to be difficult for Ms Hyland to deal with because of her autism.4.55.2 Dr Guest and Ms Blacow no longer accept that Ms Hyland has autism and that affects their description of what happened. Even at the time, Dr Guest seems to have found it hard to identify challenging behaviour from Ms Hyland as something related to her autism, and to respond to it as such.4.55.3 In her letter to Dr Guest on 27 March 2017, not long after the event, Ms Hyland said that she was having a meltdown, worsening over the week, and referred to having a panic attack. That is consistent with her evidence to the Tribunal.4.55.4 Dr Guest’s witness statement acknowledges that Ms Hyland was upset by the emails and that she threw the book so that Dr Guest could get the passwords. Ms Blacow’s statement is inconsistent with Dr Guest’s. There are photographs of the book in the file of evidence. It is a small leatherbound diary not much longer than a biro and about twice as thick. It is not a “hardback book”. Nobody said at the time that Ms Hyland had thrown a hardback book at Dr Guest. That was not mentioned in the minutes of the meeting that took place shortly afterwards (see below). If Dr Guest and Ms Blacow thought that Ms Hyland had thrown a hardback book at Dr Guest, rather than tossing it across the desk to her, the Tribunal would have expected that to be mentioned at the meeting.4.55.5 It would not make sense for Ms Hyland to be angry about having to give the password to Dr Guest. She had already tried to give it to her. Ms Blacow’s account seemed to be exaggerated with hindsight. 4.56 About 45 minutes later Ms Hyland had to attend the “review” meeting with Dr Guest and Ms Blacow. The Tribunal’s view was that even if Ms Hyland had not been autistic at all, and this really had simply been an angry outburst, her employer should have considered whether this was appropriate. Dr Guest and Ms Blacow were going to have a capability meeting to address performance concerns. The employee needed to be in the right frame of mind to participate in such a discussion. Any employee who had been sitting in the corner trying to calm down less than an hour earlier was very unlikely to be in the right frame of mind; still less an autistic one. 4.57 The meeting lasted about an hour. Ms Hyland was not told in advance what it was about. She did not have anybody in the meeting to support her. 4.58 Brief minutes were written by Dr Guest and Ms Blacow. The Claimant saw them when she made a subject access request in 2017. She told the Tribunal that the minutes were accurate as far as they went, but she said that they did not record her responses. The minutes are one page long. They obviously do not record everything that was said in an hour-long meeting. However, it is clear that at the meeting:4.58.1 Dr Guest and Ms Blacow told Ms Hyland that buying a domain name for Aspiedent without telling them was gross misconduct. They accepted that she did not do it with the intention of stealing but they told her she should not have done it. They said that if she did anything like that again she would be dismissed.4.58.2 Dr Guest and Ms Blacow told Ms Hyland that it had caused Dr Guest major concern when she asked Ms Hyland for the password on Monday and Ms Hyland “withheld” it. They agreed that Ms Hyland would copy the contents of the website onto the Aspiedent WordPress site that Dr Guest had created “ASAP.”4.58.3 They agreed to draw a line under these events as long as the domain and website were transferred to Aspiedent and deleted from Ms Hyland’s WordPress space.4.58.4 There was a discussion about Ms Hyland’s behaviour when changes were made to her work or when she did not get her own way about things. Dr Guest and Ms Blacow referred to this at the time as a “tantrum”. Ms Hyland evidently referred to “meltdowns”. The minutes say that further meetings would be required to discuss this.4.58.5 There was a discussion about Adobe. The minutes say: We talked about [Ms Hyland’s] aversion to anything but Adobe and that she should try other programmes out. [Dr Guest] brought a list of alternatives that she had found and we agreed [Ms Hyland] would try these. [Ms Hyland] took a photograph of the programmes. [Ms Hyland] agreed to work with these other programmes. 4.59 The Tribunal noted that in the review meeting Dr Guest accepted that Ms Hyland was not trying to steal from Aspiedent when she registered the domain name. She agreed to draw a line under it. 4.60 Ms Hyland told the Tribunal that she had not fully recovered from the panic attack and meltdown when the meeting took place. She was still overwhelmed because of her autism. She processed the bare minimum of what was said and was unable to participate effectively. She said anything she thought would bring the meeting to an end as quickly as possible. Dr Guest said in her witness statement that she was able to “sense emotion directly” and could tell that Ms Hyland was not anxious in the meeting but was “livid” because “despite all her scheming over months she was not getting her own way with WordPress.” The Tribunal thought that the minutes written at the time did not reflect that view and that Dr Guest’s perception has changed with hindsight. Dr Guest also described the meeting as “extremely difficult and stressful.” Ms Blacow said in her witness statement that it was only when Ms Hyland felt better and Dr Guest was able to cope with Ms Hyland’s emotions that they had the meeting. There was “no evidence” of Ms Hyland experiencing a shutdown. 4.61 The Tribunal accepted Ms Hyland’s evidence. She has autism and when she is stressed or anxious or has too many issues to deal with at once, this can be overwhelming and even lead to a shutdown. This was exactly that kind of situation. There is no dispute that Ms Hyland had needed to sit in the corner for some time less than an hour earlier to calm down. Dr Guest herself described the meeting itself as “extremely difficult and stressful”. Dr Guest and Ms Blacow could not know what was going on inside Ms Hyland’s head. They seem to have had difficulty even at the time identifying her reactions as those of an autistic employee and responding to them in that context. 4.62 As far as Adobe was concerned, Ms Hyland’s evidence was that she did not understand that she was forbidden from using Adobe. She thought that the other software was an alternative because Aspiedent could not afford Adobe. All the ones on Dr Guest’s list were free. She said that she was unable to process and keep up with what was being said at the meeting. She would have agreed to anything she was asked without challenge, including a request to trial other software. She could not recall Dr Guest forbidding her from using Adobe. Having now seen the minutes of the meeting, she did not think they mentioned any such prohibition either. 4.63 In her witness statement Dr Guest said that Ms Hyland was told that they were not going to buy Adobe for her, “because we could not afford it.” She was given a list of “free” alternative software to choose from. That is consistent with Ms Hyland’s understanding. She was not being “forbidden” from using Adobe. She was being told that Aspiedent could not afford to buy it. She was asked to try a free alternative in that context. We have already mentioned that Aspiedent’s written arguments say something different. The Tribunal found that that was inaccurate. We find that at the meeting Ms Hyland was not forbidden from using Adobe. She was told that Aspiedent could not afford to buy it and was asked to try a free alternative. She agreed to do so. That is consistent with the minutes written at the time and with Dr Guest’s own first witness statement. The only reason for asking Ms Hyland to try different software was the cost of Adobe. 4.64 That evening Ms Hyland found an old Adobe disk from 2012. It was from when she was at university. It was not time-limited because it was from before the time Adobe became subscription only. The disk said on its front cover, “Education Edition Academic ID required” and “Stop proof of eligibility must be provided prior to using the student and teacher edition.” Ms Hyland acquired the disk when she was a student. She told the Tribunal that she did not think about whether those warnings had any implications when she found the disk in 2017. She just thought it would be useful. 4.65 On Thursday 23 March 2017 Ms Hyland came to work tired and in a heightened state of anxiety still. At one stage she apologised to Ms Blacow and KM for being irritable. She was excited to have found the Adobe disk and showed it to Ms Blacow and KM, saying something like, “You’ll never guess what I found last night.” Then she put the disk in her drawer. In her witness statement Ms Blacow agreed that Ms Hyland showed her the disk. She said that she was “very pleased with herself and put it in her drawer.” However, earlier in her statement Ms Blacow said that after the WordPress issue, Ms Hyland “tried the same thing with Adobe … the very next day.” Ms Blacow said that this was “against the instructions” Ms Hyland was given. She said that Ms Hyland, “Showed her the disk briefly but had no intention of asking permission to use it.” She said that it appeared that Ms Hyland, “Had no intentions of being open about this or even asking permission from me before installing it on her laptop to use for Aspiedent purposes.” The Tribunal found that this could not be right. On Ms Blacow’s own account, Ms Hyland happily showed her (and KM) the disk, before putting it in her drawer. She could not have been more open with Ms Blacow about it. Ms Blacow did not react negatively or report this to Dr Guest. That, too, suggests that Ms Hyland had not been forbidden from using Adobe the previous day. If she had been, Ms Blacow would have known about it and she would have responded accordingly. This is one example of Ms Blacow viewing events differently and with an inaccurate, negative perspective of Ms Hyland with hindsight. The Tribunal found that Ms Hyland brought the disk in because she still had a preference to use Adobe because of her resistance to change caused by her autism. She thought that this disk would enable her to carry on using Adobe. 4.66 At 10am that day, Ms Blacow forwarded an email from Dr Guest to Ms Hyland telling her what to do that day. She asked her to work on a marketing strategy for the website with Ms Blacow in the morning and to continue transferring the website in the afternoon. She set out a plan for Friday and Monday. That was a measured email, seeming to draw a line under the previous days’ events as agreed. 4.67 Ms Blacow sent Ms Hyland her work in progress at lunchtime, before leaving to help deliver Social Skills Training. KM went too. Dr Guest was present at the training. KM said something to her along the lines that it was good news that Ms Hyland had found an Adobe disk. Dr Guest described her response in her witness statement. The Tribunal thought it was written with hindsight. She said that she was concerned about a licence breach, but she had not seen the disk and did not know whether it was a student copy. She said that Ms Hyland was going behind her back. She had only told Ms Blacow. Dr Guest would have expected her to ask Dr Guest straight away. The Tribunal noted that all Ms Hyland had done was bring the disk in, show it to Ms Blacow and put it in her drawer. Dr Guest was not present in Ms Hyland’s office that day. 4.68 During the afternoon Ms Hyland was not coping well. She began to have problems breathing and called NHS 111. An ambulance was sent. She had improved by the time they arrived and was told this was most likely a panic attack. Ms Hyland told Ms Blacow what had happened. 4.69 At about 4pm, Ms Hyland emailed Dr Guest and Ms Blacow. The email was titled “Sorry”. Ms Hyland wrote: I have not been coping very well this week at all, the sudden changes on Monday, all the strain of Tuesday, yesterday the strong wording, rapid and frequent emails received in the early morning really upset me to the point of having a panic attack. After not sleeping all night because of how upset I am (and my skin condition becoming really bad because of the stress) and other things, today I became so ill I had to be treated by an ambulance. I didn’t know what on earth was going on and frankly it was terrifying, it is very fortunate I have had enough training to be able to deal with medical situations that it didn’t become too panicked. After talking with the paramedics they said that it was most likely an anxiety attack (not a reaction). They also recommended that I make an appointment with a doctor to register and discuss the event and take a few days off. (I will work from home for my half day tomorrow and hope to be back by Monday!) I feel I am really without any support, right now. I haven’t felt this low, emotionally fatigued and ill in a very long time especially since up until yesterday I have had only one incident like this in my life, I hope that I can recuperate over the weekend. I’m really sorry about this. 4.70 Ms Hyland sent a separate email to Ms Blacow, attaching her work and apologising that it was not up to her usual standards. 4.71 Ms Hyland described her longer email as a “cry for help”. It seemed to the Tribunal that it was partly that and partly an explanation of what was going on for Ms Hyland and how the events of the week had affected her. It was telling Aspiedent that she might be off work. 4.72 Neither Dr Guest nor Ms Blacow replied directly to it. In her witness statement Dr Guest said that she and Ms Blacow were “most disappointed and upset” when they opened the email to find that Ms Hyland was only “blaming us for her problems.” Dr Guest’s reaction was that “they had no more support to give.” In her second witness statement Dr Guest said that they were concerned about Ms Hyland having to call an ambulance but their concern “vanished” when they got the “‘sorry email’ that was not sorry at all.” Dr Guest said that all the email was doing was blaming them for Ms Hyland’s problems, problems that were of her own making. Dr Guest said that Ms Hyland was “having a massive and worsening temper tantrum because we were not giving her what she wanted.” 4.73 The Tribunal’s view was that this was an unreasonable and unfair characterisation of Ms Hyland’s email. It did not reflect an objective or appropriate response to such an email from an autistic employee. The Tribunal understood that Dr Guest viewed the email through her own autistic lens. 4.74 It seemed to the Tribunal that it was this “sorry” email that led Dr Guest to re-visit her earlier agreement to draw a line under the website events. On Friday 24 March 2017, she emailed Ms Hyland at 8am. She made no reference to Ms Hyland’s email from the previous day, or to the difficulties Ms Hyland had described in that email. She simply asked her to work on transferring the website, and said that she was keen for it to be completed. Ms Hyland replied at about 10am. She said that she had spent time trying to find an efficient way to move everything across the previous day. She had emailed a technician for help who had shown her how to do it. Most of the content was now in the new space. She reassured Dr Guest that she was not ignoring her emails but explained that she did not check them until 10am. 4.75 At 3pm, Ms Blacow emailed Ms Hyland as follows: We have been very concerned about your behaviour this week, especially your behaviour and attitude after our meeting on Wednesday. We have taken advice today and have had to come to the regrettable decision to end your contract with Aspiedent CIC on the grounds of gross insubordination. In the meeting on Wednesday, we agreed that you would trial other software packages. Bringing in Adobe on a disk yesterday (regardless of whether it was for your own laptop or not) was in breach of what was agreed in the meeting on Wednesday and potentially put Aspiedent at risk. Buying the Aspiedent domain name was gross insubordination regardless of your intentions behind doing so. Your email yesterday afternoon showed no signs of remorse and it was actually very upsetting. I have attached a copy of your dismissal in the post. … 4.76 In their written arguments Aspiedent said that it was the “deceitful and manipulative” behaviour over WordPress and then the Adobe disk that triggered Ms Hyland’s dismissal. This and other circumstances, such as treating Dr Guest with contempt and refusing to accept constructive criticism, meant that they could not trust her. In addition, they were concerned about her having “temper tantrums”. 4.77 Ms Hyland replied to Ms Blacow’s email to say that she was stunned and devastated. She wanted to appeal and asked to get together next week to discuss it. She sent a separate email asking for her contract of employment and repeated her request a couple of hours later. Appeal against dismissal 4.78 On 27 March 2017 Ms Hyland wrote to Dr Guest asking for another chance. She said how much she had loved her job and wanted Aspiedent to succeed. She said that because of her autism she struggled with change. There had been a lot of that lately. She thought it had been affecting her and was the cause of her behaviour over the last week. Another aspect of her autism was a strong resistance to new ways of doing things. She said that she should have followed Dr Guest’s wishes and let go of WordPress and Adobe. She acknowledged that her behaviour had appeared bad and she apologised. She said that if anybody could understand a bad reaction to change it was hopefully Dr Guest. She explained that her “sorry” email was not to blame but to explain that she was not coping well and needed help. She was sorry it was upsetting. She confirmed that she had transferred most of the website content before Aspiedent blocked her access and she explained how the domain name could be transferred to Aspiedent. 4.79 Dr Guest replied by email. She said that Ms Hyland should send her appeal. She said they had arranged for an independent third party with extensive experience in autism to provide advice. She told Ms Hyland that if she wanted her contract she would have to come and collect it and should bring everything belonging to Aspiedent at the same time. 4.80 Ms Blacow and Ms Hyland exchanged emails and texts about Aspiedent providing Ms Hyland with a copy of her contract and Aspiedent’s policies and about Ms Hyland returning Aspiedent’s belongings such as keys. 4.81 Ms Hyland was eventually provided with an unsigned contract that had been dated 20 February 2017. She was also provided with a copy of a disciplinary process. That was a basic process but compliant with the minimum required by the ACAS Code of Practice on Disciplinary and Grievance procedures. 4.82 Ms Hyland appealed against her dismissal on 31 March 2017. She sent a detailed letter. She acknowledged that she had made mistakes and gave an assurance that she had learned from them. She explained the role her autism had played in events. She asked for her job back. Failing that she asked for a reference that focussed on the positives of her time at Aspiedent. She set out a chronology of events. 4.83 Dr Guest responded in writing on 10 April 2017. She said that they had taken advice. She said that Aspiedent could not provide training or supervision. If Ms Hyland could not work independently she was not suited to Aspiedent. In addition, they were not able to buy Adobe. If Ms Hyland really needed to use it and struggled with new software, then the job was not a good match for her. Further, if Ms Hyland struggled with the chaotic nature of Aspiedent she was very unlikely to enjoy working there in the long term. Therefore, her appeal was unsuccessful. Dr Guest said that Aspiedent would provide a reference that simply gave Ms Hyland’s dates of employment and job title and would not say anything negative. She suggested that Ms Hyland could say in job applications that her reason for leaving Aspiedent was that the job turned out not to be a good fit. 4.84 Dr Guest told Ms Hyland that Aspiedent had taken advice, but Aspiedent has not disclosed any advice given by a third party or any correspondence about that in these proceedings. Reference request 4.85 Ms Hyland applied for new jobs. She was offered a job as a Customer Adviser with Lloyds Banking Group on 16 May 2018. The vetting process was outsourced to a company called Security Watchdog. Ms Hyland supplied Ms Blacow’s phone number and work email for them to obtain a reference. On 25 May 2018 Security Watchdog emailed Ms Blacow to say that they were trying to obtain an email address to send a reference request for a former employee and asked for the best address. It is not uncommon for reference requests to be made in that way. No doubt this is to maintain confidentiality until the new employer is certain they are communicating with the correct person. The heading of the Security Watchdog email was, “Service Team Lloyds.” Security Watchdog did not receive any reply. Ms Hyland told the Tribunal that she spoke to Security Watchdog by phone. They told her that they had called Aspiedent more than once but had not received a reply. By 22 June 2018 Lloyds Banking Group asked Ms Hyland to provide her dismissal letter instead. She sent her dismissal letter, appeal letter and appeal outcome letter. On 6 July 2018 Lloyds Banking Group withdrew the job offer. They told her that dismissal for “gross insubordination” was outside of their risk tolerance. 4.86 Dr Guest and Ms Blacow did not deal with this in their witness statements. In their written arguments they said that they told Ms Hyland that they had not received a reference request when they responded to an email that had been sent to them by Ms Hyland by mistake. That was an email Ms Hyland sent on 12 June 2018. She meant to ask a different “Jen” for a reference but she mistakenly sent it to Ms Blacow. Aspiedent emailed the Tribunal about the mistaken email on 19 June 2018 because they thought it proved that Ms Hyland was lying about her ability to learn new software. They said that Ms Hyland had been offered a job by Lloyds Banking Group and was going through the pre-screening process. They said that they had not been asked for a reference. They knew about it because of the mistaken email. 4.87 Ms Hyland applied to add her complaint of victimisation to her claim on 20 July 2018. Aspiedent objected on 24 July 2018. They said that they had pointed out on 19 June 2018 that they had not been asked for a reference. They hoped that would alert Ms Hyland. They said that if the Claimant wanted a reference she should have made sure they received a request. They said that because of Ms Hyland’s “complete lack of integrity and the fact that [she] is telling lies about her employment at Aspiedent on LinkedIn” they felt that providing a minimal reference compromised them and left them open to legal action. They needed to be free to “tell the truth” in a reference. That is obviously different from what they said in the outcome to Ms Hyland’s appeal. They also said that they had received no request for a reference by email, phone or contact form. 4.88 In their written arguments Aspiedent said that their response to the Tribunal should have shown Ms Hyland that if she wanted a reference she needed to take action. They said that Ms Hyland did not actually want them to provide a reference because that meant her “wrongdoing” could be covered over. They said that if they had provided a reference Ms Hyland would have taken them to court because she did not like the contents. 4.89 In their further comments after the hearing, Aspiedent said that Ms Hyland had lied about giving Security Watchdog Ms Blacow’s contact details. They said, “The email Jen received asked who to ask for a reference. Surely if [Ms Hyland] had really given this information, the email would have requested a reference for [Ms Hyland]. The evidence points to Aspiedent never being asked for a reference.” They also said that they remembered getting the email and that it did not tell them it was Ms Hyland who was looking for a reference. They had other staff members. That is the first time Aspiedent said that Ms Blacow had received the email from Security Watchdog. It was not mentioned at all in the correspondence about the victimisation claim in 2018. That was only about four weeks after they got the email from Security Watchdog with the heading, “Service Team Lloyds”. Aspiedent also said for the first time that Ms Blacow telephoned the number on the email and left a message but nobody ever called back. 4.90 It is now clear that Aspiedent did get the email from Security Watchdog on 25 May 2018. The Tribunal concluded that they must have realised that this was to do with Ms Hyland. Aspiedent is a very small company. The number of people who might be asking for references is very small. The email was headed “Service Team Lloyds” and Dr Guest and Ms Blacow knew from 12 June 2018 that Ms Hyland had been offered a job by Lloyds Banking Group and was asking someone else for a reference for that. In their letters to the Tribunal Aspiedent did not mention getting a request for a reference for an unnamed employee headed “Lloyds Service Team” at around this time. They said that they had not had a reference request for Ms Hyland. The Tribunal found that they must have realised the request was about Ms Hyland. Further, the Tribunal found that Aspiedent did not respond to the request. We accepted Ms Hyland’s evidence that Security Watchdog told her they had tried to contact Ms Blacow by phone as well. Ms Hyland had obviously provided Ms Blacow’s contact details to Security Watchdog because they emailed Ms Blacow. Their job was to obtain references. It is likely that they would have telephoned too. It is clear that Dr Guest and Ms Blacow did not want to provide a short, neutral reference for Ms Hyland. They said that on 24 July 2018. Taking all those things into account the Tribunal found that Dr Guest and Ms Blacow deliberately did not respond to the contact from Security Watchdog because they did not want to provide a reference for Ms Hyland and they realised this was about her. Legal Principles Discrimination and victimisation5.1 Claims of discrimination are governed by the Equality Act 2010. Section 39 makes it unlawful for an employer to discriminate against or victimise an employee. If the employment has ended, victimisation that arises out of it and is closely connected to it is still unlawful: see section 108 and Rowstock Ltd v Jessemy [2014] ICR 550.5.2 The burden of proving discrimination is governed by section 136 of the Equality Act 2010. Guidance about how section 136 operates was confirmed by the Court of Appeal in Ayodele v Citylink Ltd [2017] EWCA Civ 1913. There is a two-stage process. First, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent committed an unlawful act of discrimination. The second stage only applies after the first is satisfied. It requires the Respondent to prove that it did not commit the unlawful act. However, if the Tribunal is able to make positive findings on the evidence one way or the other, the burden of proof provisions do not add anything: Hewage v Grampian Health Board [2012] ICR 1054.5.3 Discrimination arising from disability is governed by s 15 of the Equality Act 2010. It says:[15]Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 5.4 The first element is ‘unfavourable’ treatment of the employee. Unfavourable treatment does not require comparison with the way somebody else was treated. The Tribunal compares what is objectively adverse with what is objectively beneficial: e.g. Trustees of Swansea University Pension and Assurance Scheme v Williams [2015] IRLR 885. The EHRC Employment Code advises that this means that the disabled person “must have been put at a disadvantage”. The threshold is relatively low. It applies to any instance in which the individual reasonably feels that s/he has suffered a detriment. 5.5 If there is unfavourable treatment, it must have been done because of something arising in consequence of the person’s disability. There are two parts to that. First, there must be something arising in consequence of the disability (“the thing”). Secondly, the unfavourable treatment must be done because of the thing. The unfavourable treatment will be done because of the thing, if the thing is a significant influence on the unfavourable treatment. The thing does not have to be the main or sole cause of the unfavourable treatment. It is enough if it is an effective cause of it: Ishola v Transport for London [2018] UKEAT 01814_18_1611. 5.6 It is a defence for the employer to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. The employer must show that it had a legitimate aim, and that the means of achieving it were appropriate and reasonably necessary. Consideration should be given to whether there was nondiscriminatory alternative. A balance must be struck between the discriminatory effect and the need for the treatment: Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, SC. A legitimate aim is one that is legal, not itself discriminatory, and represents a real, objective consideration. It will be difficult for an employer to prove that its unfavourable treatment was justified if it has failed to make reasonable adjustments that would have prevented the disadvantage: Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 CA. 5.7 Adjustments for disabled people are governed by sections 20-22 of the Equality Act 2010, and a number of the schedules. Sections 20 and 21 say, so far as material:[20]Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …[21]Failure to comply with duty(1) A failure to comply with the first … requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. … 5.8 Paragraph 20 of schedule 8 of the Equality Act 2010 says that the duty to make reasonable adjustments does not apply if the employer does not know and could not reasonably be expected to know that the employee has a disability and that the employee is likely to be placed at the relevant disadvantage. 5.9 The reference to a provision, criterion or practice is often referred to as a PCP. The expression is interpreted broadly. It includes any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. The words provision, criterion and practice all carry the connotation of a ‘state of affairs’, indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. A one-off decision or act can still be a practice. For there to be a practice, there must be some element of repetition or evidence that this is how things were generally done or would be done in future: Ishola v Transport for London [2020] EWCA Civ 112, CA. 5.10 When deciding whether there was a failure to make reasonable adjustments, the Tribunal must consider the PCP, the identity of non-disabled comparators where appropriate, and the nature and extent of the substantial disadvantage suffered by the Claimant. It should analyse what steps would have been reasonable for the Respondent to have to take to avoid that disadvantage. The Claimant must identify in broad terms the nature of the adjustment. Then the Respondent must show that the disadvantage would not have been eliminated or reduced, or that the adjustment was not reasonable: see Environment Agency v Rowan [2008] ICR 128, EAT and HM Prison Service v Johnson [2007] IRLR 951, EAT. 5.11 The purpose of a comparison with people who are not disabled is simply to establish whether it is because of disability that the disabled person is disadvantaged by the PCP. There is no need to identify somebody who was treated differently in the same circumstances. 5.12 The Tribunal must decide objectively what adjustments were reasonable: see Smith v Churchills Stairlifts plc [2006] ICR 524, CA. 5.13 The factors that may be relevant to an assessment of reasonableness include: whether taking any particular steps would be effective in preventing the substantial disadvantage; practicability; financial and other costs and disruption; the employer’s financial and other resources; the availability of financial and other assistance and the type and size of the employer. 5.14 Victimisation is dealt with by s 27 of the Equality Act 2010, which says, so far as material:[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or …(2) Each of the following is a protected act - (a) bringing proceedings under this Act, … 5.15 When deciding whether the detriment was done because the employee did a protected act, the Tribunal must consider what, consciously or subconsciously, motivated the employer to subject the employee to detriment. 5.16 An employee can bring a complaint of breach of contract against an employer if the claim arises or is outstanding when their employment terminates: the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The Tribunal must decide what the terms of the contract were and whether they were breached. In order to decide what the terms of the contract were, the Tribunal must first decide as a matter of fact what the parties actually agreed. Application of the law to the facts6.1 Applying those principles to the findings of fact above, the Tribunal considered each issue in turn. The findings of fact are very detailed and that means the issues can be answered much more briefly.6.2 We deal with each reasonable adjustments claim in turn, looking at each practice, together with the relevant disadvantage, adjustments and knowledge. Concrete 56.3 The Tribunal found that Aspiedent did not have a practice of requiring Ms Hyland to use Concrete 5 to build its website rather than WordPress. As explained above, we accepted Ms Hyland’s evidence that Dr Guest gave her permission to develop the website using WordPress. That is inconsistent with a practice of requiring her to use Concrete 5. That means this complaint does not succeed. Review meeting6.4 The Tribunal found that Aspiedent did have a requirement to attend and participate in a review meeting on 22 March 2017 without being given an agenda or written details of what was to be discussed. This was not just a “one off” but was part of a practice. Aspiedent said that the Claimant had never needed an agenda or written details in advance of a meeting before. They did not see why this one was any different. The Tribunal found that having to go to meetings without an agenda or written details of what was going to be discussed was clearly the way things generally were or would be done.6.5 This practice put Ms Hyland at a substantial disadvantage compared with someone without autism. As explained in the findings of fact, she was unable or less able to process what was being discussed and unable to participate effectively because she was overwhelmed. The inability to prepare in advance made Ms Hyland’s difficulties during the meeting worse. Someone without autism would have been better able to process what was being discussed and participate effectively without knowing the agenda in advance. The fact that Ms Hyland was able to confirm that the very brief minutes were accurate as far as they went does not mean that she was able to process what was being discussed during the hour long meeting or participate effectively at the time.6.6 The Tribunal had no doubt that Aspiedent knew or could reasonably have been expected to know about the disadvantage. Dr Guest’s job is as an expert in autism. She knew that Ms Hyland had autism. She could reasonably be expected to know that being asked to participate in a long and stressful meeting like this without being able to prepare in advance would be harder for Ms Hyland and that she might find it difficult to process what was being said or participate effectively. This was even more obvious because Ms Hyland had been in the corner of the room needing to calm down less than an hour earlier.6.7 It was reasonable for Aspiedent to have to postpone the meeting to another day and to provide a written agenda in advance. These steps would both have helped to avoid or reduce the disadvantage. Ms Hyland would have been in a better state to take part in the meeting on another day. She would have been better able to process and participate if she had had a chance to prepare in advance. Aspiedent’s main reasons for not doing these things seem to be that Ms Hyland had not needed a written agenda in advance of other meetings and that she had taken part in other meetings on days where she had needed to calm down earlier in the day. But this meeting was not the same as others. It was to address formally concerns that Aspiedent had about Ms Hyland’s performance. Ms Hyland needed to be able to participate effectively in a meeting like that. These steps were practicable and inexpensive. The Tribunal took into account that Dr Guest has autism. But Aspiedent’s business was advising employers how to manage autistic employees. The Operations Manager does not have autism. We were satisfied that these were reasonable steps and Aspiedent failed to take them. This complaint therefore succeeds. Adobe6.8 Aspiedent did have a practice of repeatedly saying that Adobe was too expensive for it to use. As explained above, Dr Guest accepted in her witness statement that she had told Ms Hyland more than once that Aspiedent could not afford Adobe and there was alternative free software that was adequate. The Tribunal found that that evidence was accurate and Aspiedent’s written arguments about this were not. At the meeting on 22 March 2017 Dr Guest again said that Ms Hyland was told that they were not going to buy Adobe for her, “because we could not afford it.” The Tribunal found that there was a clear practice of repeatedly saying that Adobe was too expensive for Aspiedent to use.6.9 This practice did not put Ms Hyland at a substantial disadvantage. She did not misunderstand. She correctly understood that cost was the sole reason for not using Adobe. This complaint therefore does not succeed. Changes to working environment6.10 The Tribunal found that Aspiedent did have a practice of making sudden and unexpected changes in working conditions, including by changing premises, changing staff and having surprise visitors to its office. We have made detailed findings about those things above under the heading, “Working Environment.” The online diary and whiteboard did not deal with many things and were not up-to-date. The cumulative effect of all the different changes in working conditions amounted to a practice. It is the way things were on a day-to-day basis.6.11 This put Ms Hyland at a substantial disadvantage compared with someone without autism. As explained in the Disability Judgment and summarised above, she can have difficulty with change to her routine, established rules or the environment. Unexpected changes can make her feel very stressed, anxious and wound up. She may need to take time out to calm down. She may “freak out” for example flinging papers down and walking off. She may be able to continue with the changed approach but that may be stressful and difficult for her. Working in Aspiedent’s disorganised and chaotic environment would have these effects on Ms Hyland.6.12 The Tribunal had no doubt that Aspiedent knew or could reasonably be expected to know about this disadvantage. Dr Guest’s job is as an expert in autism. Providing advice about managing autistic employees was Aspiedent’s business. Aspiedent’s own website identifies “careful change management” as a key requirement for many autistic employees. Dr Guest’s blog deals with the same point.6.13 It was reasonable to expect Aspiedent to give Ms Hyland advanced notice of changes or what was to happen each day as far as possible so that she had time to process and adapt to them. That would have helped to avoid or reduce the disadvantage. Knowing what was going to happen and being able to prepare for it would reduce her feelings of stress and anxiety and enable her to cope better with the change. Her careful preparations for her house move showed that she was able to cope better when she could plan for change. Many of the changes must have been known about at least some time in advance. For example, Aspiedent must have known before Monday 20 March 2017 that CN was leaving and KN was starting that day and they must have known that people were coming to the office for a meeting. Ms Hyland could have been told about those things in advance. The evidence about the office move set out above also show the opposite of a carefully planned change. Some parts of the move may have been fast-moving or unpredictable. Obviously Aspiedent could only provide information once it knew about things itself. But, for example, Ms Hyland had to text Ms Blacow on Sunday 12 February 2017 to ask where she should work the next day and Ms Blacow replied two minutes later to tell her. She must have known already that Aspiedent had been told it could stay at E-Spark but nobody had told Ms Hyland. It is not enough for Dr Guest and Ms Blacow to say that they are disorganised. Aspiedent employed autistic members of staff. It knew the importance of careful change management. It needed to practise what it told others to do. If Dr Guest’s own autism affected her ability to do so, she had a support worker who was also Aspiedent’s Operations Manager to help her with it. These steps were practicable and inexpensive. Aspiedent did not always give Ms Hyland advanced notice of changes so that she had time to process or adapt to them. This complaint therefore succeeds.6.14 The Tribunal did not deal with the hypothetical question whether Ms Hyland would have been dismissed on 24 March 2017 if the relevant steps had been taken. As we explain below, we found that her dismissal was discriminatory in any event for a different reason. Discrimination arising from disability Dismissal6.15 Aspiedent treated Ms Hyland unfavourably by dismissing her on 24 March 2017. Dismissal is unfavourable treatment.6.16 One of the reasons Aspiedent dismissed Ms Hyland was the fact that she brought the Adobe disk into work on 23 March 2017. Another was her behaviour during 20- 24 March 2017. As set out in the findings of fact, the dismissal letter referred to the Adobe disk as one of the reasons and to Ms Hyland’s behaviour as another. In its written arguments Aspiedent referred to “temper tantrums” as one of the aspects of Ms Hyland’s behaviour that was a concern.6.17 As set out in the findings of fact, the Tribunal found that Ms Hyland brought the disk in because she still had a preference to use Adobe. This was because of her resistance to change caused by her autism. She thought that this disk would enable her to carry on using Adobe. Bringing the disk in was “something arising in consequence of” her autism and it was one of the reasons she was dismissed.6.18 The Tribunal also found that aspects of Ms Hyland’s behaviour that week were caused by her autism. That included her reaction to the three emails on Wednesday 22 March 2017, including tossing her diary across the desk with the passwords for Dr Guest and her panic attack or meltdown that morning. That is one of the things Aspiedent is referring to when it talks about temper tantrums. Her behaviour was “something arising in consequence of” her autism and it was one of the reasons she was dismissed.6.19 Dismissing Ms Hyland was not a proportionate means of achieving a legitimate aim. Aspiedent have not specifically identified a legitimate aim but they appear to argue that Ms Hyland’s conduct justified dismissing her. Dealing with an employee’s misconduct or ensuring proper standards of conduct might be a legitimate aim, but the Tribunal found that it was not proportionate to dismiss Ms Hyland for that reason in this case.6.20 Ms Hyland’s conduct did not make it appropriate or reasonably necessary to dismiss her.6.20.1 She had permission to use WordPress to develop the website content. She showed the site regularly to the Operations Manager. She explained about buying the domain name at the meeting on 22 March 2017. Dr Guest accepted her explanation and agreed to draw a line under it. Ms Hyland had transferred almost all of the website across to Aspiedent before she was dismissed.6.20.2 Ms Hyland’s conduct relating to the Adobe disk did not justify her dismissal. She had been told Aspiedent would not buy her a copy because they could not afford it. She had not been forbidden from using it. She found a copy that she thought would solve the problem. All she did with that copy was bring it in, show the Operations Manager and put it in a drawer. She was entirely open. Dr Guest was at the other office that day.6.20.3 Ms Hyland was not being dishonest or deceitful.6.20.4 Much of Ms Hyland’s behaviour that Aspiedent criticise was linked to her autism. The Tribunal’s findings of fact about that behaviour are set out above. That must be weighed in the balance.6.20.5 Aspiedent did not think they needed to dismiss Ms Hyland for the things that happened up to 22 March 2017 until she sent her “sorry” email. Bringing in the Adobe disk and sending the “sorry” email did not make it appropriate or reasonably necessary to dismiss her.6.21 If there were concerns about Ms Hyland’s conduct, Aspiedent could have taken other steps to deal with them that were less discriminatory than dismissal. Those included having a meeting with Ms Hyland to discuss the concerns, after giving Ms Hyland advanced notice of what they were and making sure that she was fit to attend the meeting. As explained above, we found that Aspiedent failed to make reasonable adjustments when it held a meeting without taking those steps. It is difficult for any employer to say that its unfavourable treatment was proportionate when it had failed to make reasonable adjustments that might have made a difference. The needs of Aspiedent also have to be weighed against the discriminatory effect on Ms Hyland. Losing her job caused a very significant discriminatory effect. Aspiedent’s needs to address its concerns about her conduct did not outweigh that. For all these reasons, dismissing Ms Hyland was not a proportionate means of achieving a legitimate aim. Response to the “sorry” email6.22 Aspiedent did treat Ms Hyland unfavourably by not addressing the concerns in her email of 23 March 2017 and by treating the email as showing no sign “of remorse” and being “very upsetting.” The email was not inappropriate. It was an explanation from Ms Hyland of how she was feeling at that time and why. It explained why she might be absent from work. The Tribunal compared that which is objectively adverse and that which is objectively beneficial. Applying that approach, it was unfavourable for Dr Guest and Ms Blacow simply to ignore the email until they dismissed Ms Hyland and then to refer to the email in the dismissal email as showing no sign “of remorse” and being “very upsetting.” Ms Hyland reasonably felt that this was detrimental. She had been so unwell she needed to call an ambulance. Her employer ignored her email about her distress and possible absence from work and then, while dismissing her, criticised her for explaining how she was feeling and why.6.23 However, this was not because of something arising in consequence of Ms Hyland’s disability. The Tribunal thought that an employee without autism might have written the email in much the same way. There was nothing in its tone or content that appeared to the Tribunal to arise in consequence of Ms Hyland’s autism. Anyway, the Tribunal concluded that Dr Guest and Ms Blacow’s response to the email was not because it was written in a particular way but because they wanted an apology from Ms Hyland and they did not think that they got one. That was more about their reaction than the way the email was written. This claim therefore does not succeed. The three emails6.24 Aspiedent did treat Ms Hyland unfavourably by sending her the three emails in rapid succession on 22 March 2017. Warning Ms Hyland that she might be dismissed and telling her she was in serious trouble was unfavourable treatment.6.25 However, this was not because of something arising in consequence of Ms Hyland’s autism. The Tribunal thought that an employee without autism might have given the wrong password in much the same way. It was a simple mistake caused by having two similar passwords written next to each other. It was not Ms Hyland’s autism that made her read the wrong password. Anyway, the Tribunal concluded that the three emails were written in the way they were because of Dr Guest’s autism. They were blunt and direct and sent as three emails in rapid succession because that is how Dr Guest communicates. That is more about Dr Guest’s autism than Ms Hyland’s. This claim therefore does not succeed.6.26 The Tribunal does not need to decide whether the ACAS Early Conciliation included the breach of contract complaint or whether to allow an amendment to the claim if not. That is because it is clear that the complaint will not succeed anyway. As explained in the findings of fact, Ms Hyland did not have a contractual right to be paid for the one day per week that she worked for Aspiedent as a volunteer between 31 October 2016 and 31 January 2017. The contract between Ms Hyland and Aspiedent was a contract to work two days per week for the agreed rate of pay. They agreed separately that she would volunteer one day per week. She did not have any contractual or other entitlement to be paid for the day on which she volunteered. Victimisation6.27 As explained in the findings of fact, the Tribunal concluded that Dr Guest and Ms Blacow did deliberately ignore the reference request and contact from Security Watchdog. That happened in May and June 2018. They did this because they realised the request was for Ms Hyland and they did not want to provide a reference for her.6.28 Ms Hyland did a protected act when she brought these Tribunal proceedings. She has proved facts from which the Tribunal could infer, in the absence of an adequate explanation, that that is why Aspiedent did not provide a reference for her. Those facts are as follows. When Dr Guest wrote to Ms Hyland with the outcome of her appeal, she told her that if Aspiedent were asked for a reference, they would give Ms Hyland’s dates of employment and job title. They would not say anything negative about her and she could say that she left because the job was not a good fit. By 24 July 2018 at the latest, Aspiedent was no longer prepared to provide such a reference. Aspiedent then said that they did not want to provide a neutral reference because of what they referred to as Ms Hyland’s “lack of integrity” and the fact that she was telling “lies.” That has been their position since. Ms Hyland brought her Tribunal claim after the appeal letter and before Aspiedent’s change of position. There was no other significant change. These are facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the reason Aspiedent did not provide a reference is that Ms Hyland brought these proceedings. As explained in the findings of fact, Aspiedent have not provided any satisfactory explanation for not providing a reference. They have not proved that they did not victimise Ms Hyland. This complaint therefore succeeds. REMEDY JUDGMENT 1. The Respondent must pay the Claimant the following sums:1.1 Compensation for lost earnings caused by discriminatory dismissal: £8832.27;1.2 Interest on that sum: £1951.33;1.3 Compensation for lost earnings caused by victimisation: £36116.34;1.4 Interest on that sum: £6301.03;1.5 Grossing up element: £2507.85;1.6 Compensation for injury to feelings caused by failure to make reasonable adjustments and discriminatory dismissal: £22000;1.7 Interest on that sum: £9721;1.8 Compensation for injury to feelings caused by victimisation: £8000;1.9 Interest on that sum: £2789.70;1.10 Aggravated damages: £5000.