Ms K Kaler v Insights ESC Ltd: 2201864/2018
JUDGMENT
The unanimous Judgment of the Tribunal is that the claimant did not meet the definition of disability under section 6 Equality Act 2010 and accordingly the claim for disability discrimination fails.REASONS
[1]This decision was given orally on 9 July 2019. The claimant immediately said that she wished to appeal. This was treated as a request for written reasons and it was explained to the claimant that as a result of this the decision would be posted online as it was a document of public record.[2]By a claim form presented on 30 March 2018 the claimant Ms Kuldeep Kaler claimed automatically unfair dismissal for whistleblowing, disability discrimination and breach of contract. The schedule of loss showed that the claimant was seeking around £4.5 million.[3]The claimant worked for the respondent school as Assistant Vice Principal. Her period of employment was from 1 January 2017 to early January 2018; she did not have two years’ service. The respondent is a specialist school providing education for children with social, emotional, behavioural and mental health needs.[4]This hearing was originally listed as a five-day full merits hearing. As set out below, the disability issue was dealt with first. The claimant said she was not able to continue after oral judgment was given on the disability issue. The respondent objected to the remainder of the hearing being further postponed and said only 2 days would be required to complete the hearing. We accepted what the claimant said, that she felt unable to continue and told the parties we would re-list the remaining full merits issues. The relevant background[5]A preliminary hearing took place on 24 July 2018 before Employment Judge Wade. The claim for automatically unfair dismissal for whistleblowing was dismissed upon withdrawal.[6]The issues were identified as disability discrimination with the claimant relying upon Asperger’s Syndrome and depression and anxiety which she said could interconnect with Asperger’s.[7]The claim for disability discrimination was for direct discrimination, harassment, discrimination arising from disability, disability harassment and a failure to make reasonable adjustments. There is also a posttermination victimisation claim and a breach of contract claim.[8]Disability remained in issue.[9]This hearing could not go ahead in November 2018 due to lack of judicial resource and was relisted for the present dates.[10]Regional Judge Potter had recommended to the claimant that she have a companion with her at this hearing to help her. The claimant chose not to be accompanied. Dealing with the disability issue first[11]We checked with the parties at the outset of the hearing and understood that disability remained in issue. The claimant confirmed to us that the disability she relied upon was Asperger’s Syndrome. It appeared to us that a large proportion of the claim hinged on a finding of disability, namely the claims for direct disability discrimination, discrimination arising from disability, disability related harassment and the claim for failure to make reasonable adjustments.[12]The claimant said that she would like the disability issue dealt with at the conclusion of all the evidence because she said that as we saw her during the course of the hearing we would be able to assess her. We reminded the claimant that we are not clinically trained and it is not for the tribunal to assess or make a diagnosis of a person’s medical condition. We would apply the law to the relevant facts.[13]We decided that in the interests of proportionate use of tribunal time, we would hear the disability issue first, given that so much of the claim hinged on this issue.[14]The claimant had requested adjustments for the hearing. At the outset we told the claimant that she could have whatever breaks she needed during the hearing. We said it would help us if she could let us know as we went along, what she needed, as we might not be able to tell.[15]Hearing of the disability issue took up day 1 of the hearing. On the evening of day 1 and on the morning of day 2 the claimant sent 7 emails to the tribunal on that issue. She also asked us to consider the following documents which we did. These were: 1. Her email sent to the tribunal 18:01 8 July 2019 2. Her email sent to the tribunal 20:02 8 July 2019 3. Her email sent to the tribunal 20:19 8 July 2019 4. Her email sent to the tribunal 20:42 8 July 2019 5. Her email sent to the tribunal at 22:15 8 July 2019 6. Pages, G1-11, G16-17, which are about the referral to the NCTL. 7. Pages D44-5, J32 about informing my employer about having Asperger’s. 8. Pages H48-9, H47, D121, D112, H2, about informing my employer of depression symptoms such as not sleeping, crying, anxiety, exhaustion 9. Page K121-122, chronology. 10.Pages H39-40, H36, H30, H23, emails about seeking clarification as instructions not clear or not given at all. 11. Pages D35-40, birthday card with Aspie on it, page D40 picture of cake with Aspie on it, showing they knew I was Asperger’s.[16]Even though these documents were sent after the hearing of the evidence and submissions, we read all of these pages before reaching our decision because the claimant is a litigant in person and was finding things difficult.[17]Also, at the claimant’s request we read the entirety of her main witness statement event though she had only sworn in evidence her disability impact statement, the supplemental evidence of 5 July 2019 and the paragraphs of her main statement that dealt with disability. We had only sworn this into evidence to avoid the claimant the difficulty of being part heard on the remainder of her evidence pending determination of this issue. Witnesses and documents[18]We had 1 lever arch bundle of double-sided documents. The claimant submitted 7 emails to the tribunal after the conclusion of the hearing of the disability issue, which we considered together with the documents referred to.[19]We did not accept from the respondent a List of Issues prepared and sent to the tribunal at 09:30 on the first morning of the hearing. Copies had not been provided for the members of the tribunal and a copy had not been given to the claimant. It seemed to us unfair to present this to the claimant at such short notice. We were content to identify the issues from the Case Management Orders and the claimant’s schedule of acts of harassment and discrimination and ask questions where necessary.[20]The tribunal heard from the claimant.[21]We had oral submissions only from each party on the issue of disability. Neither side took us to any case law or the Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability. Findings on the disability issue[22]The claimant initially worked for the respondent as a supply teacher in 2013. We saw an email dated 10 June 2013 at page D45 in which the claimant said she was in the process of being diagnosed and believed that she had Asperger’s Syndrome. She said she had been advised that she should tell her employer that she had a disability.[23]The claimant has a degree in English and is an English teacher. As a full time student the claimant also ran a property business managing 46 properties. She was the managing director and said that she left the day to day running to two colleagues.[24]The period of employment in question is from 1 January 2017 to early January 2018. The effective date of termination is in dispute, on the respondent’s case it is 3 January 2018; on the claimant’s case it is 8 January 2018.[25]As the claimant has sent to the tribunal 7 lengthy emails addressed to the Judge (and we reminded the claimant that this is a 3 person tribunal with equal decision making), we clarified for the claimant that the disability issue was not about whether she informed the respondent about the disability she relies upon. It was about whether she met the definition of disability in section 6 of the Equality Act at the material time, which was between 1 January 2017 and early January 2018.[26]It was for the claimant to prove disability and not for the respondent to prove that she was not disabled. What the respondent knew about any disability was not the question at this stage.[27]We saw an Employment Medical Questionnaire (page C41) dated 6 March 2013 in connection with the claimant’s first period of work with the respondent, in which she declared “no” to all answers related to medication, time in hospital, illness or medical condition and a declaration that she did not consider herself to have a disability.[28]When the claimant applied for the job which she held at the date of dismissal, that of Assistant Vice Principal, she did not disclose a disability in her application form of 16 June 2017, page C29. She has completed the form and left blank the box asking whether she considered herself disabled and what assistance she would like to receive. The claimant gave the reason for this as the question asking what assistance she would like to receive and not whether she considered herself disabled. She said she takes things very literally.[29]The claimant accepted in evidence that she was very keen to get this job. She decided to pursue this application in preference to another. She said when she filled in that form, it asked her if she needed any adjustments or assistance for the interview. She said she took things literally and it was put to her that if she read that literally she knew she would get an interview.[30]In connection with taking things very literally and in relation to disclosure of documents, the claimant said in evidence that the tribunal had told her that she had disclosed everything that she needed to disclose. We saw a letter from the tribunal dated 3 September 2018 (page A6) saying that she was not obliged to disclose medical records which related to irrelevant medical conditions and if records were illegible she had offered to clarify. It also said that the parties had completed disclosure and must cooperate to agree the bundle. It did not say that the claimant had disclosed everything that she needed to disclose. The tribunal could have no way of knowing this.[31]Given that she was so keen on the job she was asked why she did not complete the disability section of the application form to be guaranteed an interview. She said she filled it in very quickly and that she had been told by Ms Quartey the principal, that she would be guaranteed an interview. The claimant said a job was being created for her. She considered it “pretty much in the bag”. She was aware that there were two positions being created, one to which Mr Michael Agyapong was appointed on the science side.[32]We did not have any expert evidence. We saw in the Case Management Order of Judge Norris made on 17 September 2018 (paragraph 6.2) that the parties had agreed that no further medical/expert evidence was required and they were both content for the tribunal to determine the question of whether the clamant had a disability at the material time, by reference to the documents she had disclosed and her disability impact statement.[33]The claimant had added to her disability impact statement on the working day before the hearing (5 July 2019) at page 43a and the respondent did not object to this.[34]The claimant had produced in the bundle some material from the internet regarding the condition of Asperger’s Syndrome. This was not documentation that was specific to her. It was related to the condition generally.[35]We saw that the claimant had historically not sought a diagnosis. In paragraph 12 of her main witness statement she said that she had always considered herself to have Asperger’s but until this year (meaning 2018 when she signed that statement) she had chosen not to get a diagnosis.[36]From the documents we saw, it was clear that in 2018 post-dismissal and in the light of these proceedings, the claimant had sought a diagnosis of this condition. She said that nevertheless she disclosed the condition to her employer and they were aware of it. She submitted that just because she does not have a diagnosis, does not mean that she does not have the condition.[37]In her disability impact statement (third paragraph unnumbered on the first page) the claimant said she found it difficult to separate Asperger’s from her other mental health issues such as depression, stress and extreme anxiety.[38]The claimant sought a diagnosis in mid-2018 through the Richmond Wellbeing Service (page D23). In a letter from a CBT therapist, Ms Powell, dated 11 June 2018, the therapist recorded that the claimant said that she believed that she had symptoms of Asperger’s. This was not the therapist saying as much.[39]The claimant was booked on to a course on Overcoming Low Mood (page D23 - letter 11 June 2018). On 15 June 2018 she was referred to the Richmond Autism Spectrum Disorder Service for an assessment of “possible autism spectrum disorder (ASD)” (page D21). She was asked to fill in some questionnaires. Although we had the questionnaires that she completed for an Asperger’s assessment in 2013, we were not provided with the questionnaires that she completed in 2018.[40]About a month later, on 16 July 2018 Dr J Woollatt, a Locum Registered Clinical Psychologist, said that there was “sufficient evidence to suggest the need for a full autism assessment” (page D20). We find this was the psychologist recommending a full assessment and not making a diagnosis. The claimant was placed on their waiting list. To date she does not have a diagnosis. The claimant said she was awaiting the final assessment.[41]We saw a letter from a Psychological Wellbeing Practitioner dated 28 January 2017 saying that the claimant had attended an initial assessment with a CBT therapist, presenting with moderate depression and mild anxiety. She had agreed to attend an introductory session and a low mood course starting in February 2017.[42]The letter said she did not attend and she informed the Practitioner that she no longer required support and did not wish to attend any treatment. She reported feeling much better and had secured new employment and asked to be discharged. We find, based on this letter, that the claimant was managing any mental health condition well and it was not having a substantial adverse effect on her ability to carry out normal day to day activities. She declined further treatment. The practitioner said: “There are no current risk concerns” (page D49).[43]As mentioned above, the claimant completed some multiple-choice tick box questionnaires in 2013, called an AQ test. She scored 39 (page D48). The documents showed that the official criteria for Asperger’s Syndrome is an AQ score greater that 32. The claimant’s evidence was that she does not as yet have a diagnosis.[44]The claimant said she had been going to the doctor since 2012 with issues of behaviour and stress. She had not disclosed a large proportion of her GP records. The claimant was sectioned under the Mental Health Act in 2012. We saw the discharge record at page D53.[45]The tribunal asked the claimant about medication. She told the tribunal that there is no medication available for Asperger’s Syndrome. She has taken sleeping pills and medication for depression in the past but has not taken anything on a regular basis; she said medication was difficult for her and that “it didn’t work for her”. We find that in relation to considering the effects of any condition without the effect of treatment, there was no medication for us to take into account.[46]The claimant accepted that she had a great deal of experience as a Special Educational Needs (SEN) teacher with children with the condition she relies on and she agreed that communication difficulties is part of the condition. The claimant referred in paragraph 17 of her main witness statement to communication difficulties.[47]We were taken to page J2 of the bundle which was an employment reference provided by Chiswick School on 26 March 2018 in respect of a period of employment of the claimant from March 2015 to December 2016. This came after the termination of her employment with the respondent and was given to an Agency, called NonStop. The Head of English described in the reference her communications skills as “Outstanding”.[48]The claimant agreed that she could communicate well and lead and run a class. She said she could communicate to do her job and agreed that anyone who worked as a teacher had to be able to communicate well. She said her social communication was what was difficult, for example the “office politics” and if people did not communicate well with her. She agreed she could write emails, make phone calls and interact with children, staff and parents. She said she did have the ability to communicate well, but this did not mean that her body “was not about to explode”.[49]We were taken to K109 a reference from Beachcroft School for the claimant from her period of employment from October 2011 to February 2012. She was rated excellent for interpersonal skills and ability to work in a team. She said that she did have excellent interpersonal skills when the person she was working with cared and was not like the respondent. She said communication became difficult when the other person did not want to communicate. She said that it depended on the circumstances. There was no qualification placed on her communication or interpersonal skills in either of the references we saw. She said generally she had excellent interpersonal skills.[50]We saw a further reference on page K110, dated 3 February 2013. The reference said that the claimant had excellent interpersonal skills and that she built strong relationships with challenging students and with staff colleagues.[51]We therefore saw three references showing that she had excellent communication and interpersonal skills. The claimant explained this as her being very “high functioning” and when she works in a school that is “as it is supposed to be” she does well, but not when there are no systems in place.[52]The claimant said her condition was life-long. She said it was impossible due to her condition for her to lie. She admits that she has a conviction for fraud in 2007 which she blamed on the Benefits Agency and said she would never claim benefits again. She said in evidence that she asked her GP to give her a certificate of unfitness for work in early 2018 after her dismissal (page D103), because she was thinking of claiming benefits. It was hard to reconcile these two statements.[53]The claimant also asked the tribunal to take into account certain personal difficult life circumstances. Whilst we noted these difficult life events and acknowledge that they have the potential to exacerbate a pre-existing condition, this did not assist us in determining whether the claimant met the definition of disability at the relevant time.[54]The claimant had chosen not to disclose her GP medical records prior to 21 December 2017. Her effective date of termination was in dispute but on her case was 8 January 2018. We did not have her GP records for the majority of her period of employment. The only entry during the course of her employment was on 21 December 2017. It was about her leg and not about a mental health condition. We therefore had no GP records concurrent with her employment with the respondent, dealing with any mental health issues. We also had a letter from a Psychological Wellbeing Practitioner dated 28 January 2017 (D49).[55]Amongst the documents the claimant took us to in submissions and in her emails after submissions, was page D119 and D121 which related to flu and shivering, plus exhaustion. These did not go to Asperger’s or, on our finding, a mental health condition. We were taken to H47 which was predominantly a complaint about a colleague. She said she had not slept all night and this happened often. H2 was an email to the respondent 1 December 2017, in which she said she wanted to discuss an exit plan because the role was making her exhausted. D112 was a return to work interview record of 11 December 2017, again for a physical condition. There were a number of references to her being exhausted and having to cover for other staff.[56]The claimant also told the tribunal that her condition caused her to have “meltdowns” and become rude and aggressive. We saw no evidence of the claimant being treated for this. The law on the disability issue[57]Section 6 of the Equality Act provides that a person has a disability if that person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.[58]Under section 212(1) of the Equality Act 2010 “substantial” means more than minor or trivial.[59]We are aware of the Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability (2011) issued under section 6(5) of the Equality Act. We were not taken to this guidance by either party but checked it prior to making our decision.[60]Paragraph D3 of the Guidance assists us with the meaning of normal day-to-day activities. In general, day-to-day activities are things people can do on a regular basis, and examples include shopping, reading and writing, having a conversation using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-today activities can include general work-related activities, and study in education related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Conclusions on the disability issue[61]There is was at the date of this hearing no diagnosis for the claimant of Asperger’s Syndrome. We are not qualified to make that diagnosis. We have not been given the benefit of expert medical evidence or a medical report or a letter, for example from the claimant’s GP.[62]The parties agreed before Employment Judge Norris on 17 September 2018 that they did not require this. They were both content for the tribunal to determine the question of whether the clamant was disabled by reference to the documents she had disclosed and her disability impact statement (Case Management Order paragraph 6.2).[63]The claimant had chosen not to disclose her GP medical records prior to 21 December 2017. Her effective date of termination was in dispute but on the claimant’s case it was 8 January 2018. We did not have her GP records for the majority of her period of employment. We only had one entry that was during the course of her employment, on 21 December 2017 and this was about her leg and not about a mental health condition.[64]It was therefore necessary for us to make the decision based on the evidence that was before us.[65]There is no diagnosis of Asperger’s Syndrome. Pending such a diagnosis we can only regard the condition as self-diagnosed by the claimant. We noted that she was seeking a diagnosis in 2013 as set out in her email of 10 June 2013 (page D45) telling the respondent that she was currently going through the process of being diagnosed. Six years later, she did not have a diagnosis of this condition.[66]There was no medication for us to take into account.[67]We noted and sympathised with the fact that the claimant has had a number of difficult life events to deal with over recent years. This did not assist us with our finding as to whether she met the definition of disability at the material time, predominantly during 2017. We also made clear that this issue of whether she was disabled at the material time, was not a question of whether she informed the respondent of any disability.[68]It was clear from the evidence we saw that the claimant had difficulties with her mental health. Once again, we had no GP records or medical reports to assist us with the extent and timing of this.[69]We cannot and do not diagnose the claimant with Asperger’s Syndrome. We have considered whether the claimant has or had at the material time a mental impairment sufficient to meet the definition in section 6 EqA, regardless of the label. We had limited contemporaneous medical evidence to assist us on this, or any medical report covering the relevant time.[70]The claimant has had mental health difficulties including depression and anxiety. We do not have the evidence to assist is in knowing when and to what extent this was the case. She told us she was “high functioning”. She is an educated and intelligent woman. She has worked in teaching for some time to a high standard. She was in the Leadership Team at the respondent as at the date of dismissal.[71]We noted that the claimant had 3 employment references referring to her communication and/or interpersonal skills as outstanding. This was not just satisfactory or good, but outstanding.[72]In relation to paragraph D3 of the Guidance, the matters dealt with by the claimant included having a conversation and we have found, based on the references and her description of herself as “high functioning”, that her communication skills were very good. The claimant said that the social elements of conversation were difficult, such as office politics and small talk. We do not consider the need to engage in office politics as falling within the category of normal day to day activities. Not everyone enjoys or wishes to take part in small talk. She agreed she could write emails, make phone calls and interact with children, staff and parents. We find that her condition did not have a substantial adverse effect on her ability to carry out this type of activity.[73]The claimant can engage in work related activities and has studied to degree level whilst running a business at the same time, even if she was not the day to day manager of that business.[74]The claimant can use a computer and prepare written documents. She prepares lessons and lesson plans and timetabling.[75]The letter we saw from the Psychological Wellbeing Practitioner in January 2017 led us to find that the claimant was managing any mental health condition well and it was not having a substantial adverse effect on her ability to carry out normal day to day activities. She declined further treatment at that time.[76]We find that the claimant has not discharged the burden of proof in establishing that she met the legal definition of disability during the period 1 January 2017 to early January 2018. In making this finding we do not say that the claimant has had no mental health condition(s), our finding is that she has not proven that she met the definition at the material time.[77]As a result of this finding the claims for disability discrimination fail and are dismissed.Findings of Fact
[78]On 15 December Ms Quartey sent the Claimant a letter accepting her resignation and noting that her last working day would be 31 January 2018. Ms Burden sent her an email that she had located the staff accident book and asked the Claimant to complete in when she was next in. The Claimant asked for a copy of the CCTV footage of the incident and Ms Wilson said that she could come in and view it at a time agreed with her.[79]On 18 December the Claimant submitted an incident report about the incident with the students on 14 December. She asked Mr Anvi and Ms Jess also to submit incident reports. There was no evidence before us to indicate that they did.[80]The last day of the term was 22 December 2017 and all staff were paid on that day. Due to the amount of sickness absence the Claimant had had in December, her salary was less than normal. At 15.58 she sent an email to Ms Quartey querying why she had not received her full salary and said that she was being discriminated against as other staff who had been absent sick had been paid in full. She continued, “If I am not paid the remaining amount within 24 hours, I will be contacting my union. I will also be contacting OFSTED with safeguarding concerns! It is illegal to take money from someone’s wages without notice!” In two subsequent emails sent a few minutes later she added Investors in People and the boroughs of Barnet, Hounslow, Ealing and Harrow as persons whom she would be contacting with safeguarding concerns.[81]At 6.22 p.m. on the same day the Claimant sent an email to all the staff at the school, the subject of which was “Your rights! Important to read!” She said that if Ms Quartey ever tried to deduct their pay because they had been absent sick they needed to know that she could not do that without notifying them in writing before hand and that if they were required to phone into work every day before a certain time they were entitled to full pay. That was not correct; the contract made it clear that they would be paid only statutory sick pay for any absences provided they met the qualifying conditions. She continued, “She has tried to take 7 days off my wages. That’s what you get for working your back side off for her and coming in with a broken leg! Great professional work ethic this is. TRIED to ruin my Christmas. Any way, I am informing my union, investors in people and OFSTED of all the failings of the school.” At the end of the email, the Claimant put the words “former Insights slave and now free spirit” in brackets after her name.[82]The Claimant sent two further emails to Ms Quartey after 7 p.m. about her pay. In the first one she said, “The money has not cleared my account yet. I have everyone’s individual email addresses and I knew you would swiftly block me. I will keep staff informed of how you treat me so you can’t do it again. It would be prudent to just hurry up and pay me!” In the second one she said, “assuming we won’t reach a settlement that I think I will agree to, I think staff should know exactly what kind of company they work for and how you operate. I think all outside agencies should know. You have just pushed me too far!”[83]On 23 December at 10.35 the Claimant sent an email to all the staff at their personal email addresses. She said that they had had time in the holidays to block her work email but not to sort out her pay. She said of her managers, “Big grown people you know, behaving like this! Shocking. Shameful. Scandalous.” She described the school as “a scam that robs the most vulnerable students of their only chance in life” . She accused the SLT of bullying staff and using the money that was paid by local authorities for their own personal benefit rather than that of the pupils.[84]At 10.51 the Claimant sent an email to Ms Quartey in which she said, “You should pay me, it would be less embarrassing.” At 11.10 she sent Ms Quartey another email which was copied to all the staff at their personal email addresses. In that email, she said, “You should be ashamed of yourself Barbara! You do all this in the name of GOD! Don’t you dare! Just admit you do it for yourself … we all know anyway! Everyone in your school thinks of you exactly as I do. That’s what you have done with your life. Built up a huge scam to rob poor vulnerable kids. All alone. The future. Sad. If my mother was like you, I’d feel so much shame!!!! You know I worked hard, everyone knows I worked hard. You just couldn’t handle working with someone who actually knew what they were doing as opposed to your PE teacher Vice Principal. So you took the cheap shot and took 7 days sick pay off during Christmas. Classy!”[85]At 11.52 on 23 December Ms Jess sent the Claimant an email in which she set out extracts from her contract and the Staff Manual about pay during sickness absence. The contractual provision is set out at paragraph 58 (above). The relevant extract from the Staff Manual was as follows, “Employees who are absent because of sickness will normally be entitled to receive Statutory Sick Pay (SSP) from the Organisation providing they meet the relevant criteria. Once the criteria has been met, SSP is not normally payable for the first three days of sickness absence, unless the employee ahs been absent and in receipt of SSP within the previous eight weeks… In order to qualify for SSP the employee must notify the Organisation on the first qualifying day, and submit a certificate of absence as soon as practicable… In exceptional circumstances, the Organisation may decide to in its absolute discretion to pay full pay during the period of sickness absence. The normal position is that only SSP is payable.” The Claimant was asked to stop sending inappropriate emails to avoid further distress to staff.[86]The Claimant responded that she was entitled to full pay. Her response included the following comments, “Barbara needs to pay me quickly. I have several concerns which I will raise with staff individually unless I am paid full pay for December in December” “I also want to speak to some of the parents that come to drop their children off. I have some concerns that I want to share with them.” “If I don’t get a suitable response to this email by tomorrow, I will be forwarding this email to staff so that they can see how the school really operates. I will continue to send emails and make phone calls until the matter is closed in a way that is satisfactory to both parties. She has tried to ruin my Christmas and leave me without funds. This is pure nastiness. Her staff will find out exactly what kind of person they work for and the local authorities will be forced to investigate once I tell them my concerns. There is always the newspapers! I could just copy them in on my emails.”[87]A little while later the Claimant sent an email to Ms Quartey in which she said, “You can choose to pay me or not. If you pay me, you lose a bit of money. If you don’t, then you will just have to accept that you will have a few investigations going on and you will lose face with your staff who are secretly loving it because they have wanted to say these things to you for years. If I get paid what is owed and fair, I will walk away. If I don’t, then I will make sure that if I’m not getting my money, then I’m definitely going to make you work hard for yours! You don’t own my mouth. You either pay for it or you don’t have any control over it. That is it. You can’t have your cake and eat it. Money=silence, no money=no obligation to be silent. Your call entirely.”[88]At 16.34 on 23 December Ms Wilson sent the Claimant a letter inviting her to a disciplinary hearing on 2 January 2018. The Claimant responded that she was too ill to attend. She said that she had not sent anything abusive and was within her rights to let staff know what was happening and that she would continue to do so. She said, “You are a bully Zoe and I will make sure everyone you work with knows it… Your conduct is illegal! Bullying! Bullying! I’m not backing down at all. The longer you all play games, the more information I will give to staff to help empower them against your regime!” A little later she sent Ms Quartey an email in which she said, “Everyone knows what you are really like Barbara, everyone is laughing about it! It is so nasty to do what you did but what do you expect, I don’t know why I ever thought you were decent and fair! I should have known from the last time I worked for your slave plantation!”[89]On Christmas eve the Claimant sent a large number of emails to Ms Quartey and Ms Wilson and to all the staff. In one of the emails to Ms Quartey and Ms Wilson she said, “That’s where being a nasty Scrooge gets you! I bet your staff are going to love seeing your faces first day back! Enjoy your huge wage packet this month whist you rob the less fortunate. You will get you comeuppance next year! Stuff your disciplinary, stick it you know where.” She said to all the staff, “I don’t care about the disciplinary because I don’t believe in the fear culture they have created in the school and am taking a public stand for the better of everyone! We are the people! They think they can control people by scaring them about references. Well I don’t give a flying hoot about their reference because I am good at what I do and will have no problem securing work. Independent schools are known for taking the absolute **** with staff! Most mainstreams just ignore their references because they know the people running them could never last a day in a mainstream.” The Claimant sent Ms Poullos a text message in which she said that she had supported her and helped her get a big pay rise. She continued, “You thought you would just shit on me. Loads of people were telling me all along. I could have made all that public and they would be horrible to you. But I’m going to give you a chance to explain why you snaked me. If you don’t explain, I will go public.”[90]On 26 December the Claimant sent Ms Quartey an email in which she said, among other things, “Zoe [Wilson] just kept picking at me all the time because she was scared for no reason. I didn’t want her job. I wanted Geoff’s! Anyway, what the biggest shame is that had you allowed me to apply for the VP role it wouldn’t have ben like this. You and me would have been flying as a team… Zoe felt unnecessarily threatened and started to bully me. She is really very rude and condescending the way she speaks to people. It’s really offensive. She should have embraced my good qualities and I hers. We could have smashed it as a team, but she wanted me to be below her not the same as her… From the moment she realised I was able she went for me, I couldn’t take it… Its really not nice when you work as hard for your boss as I did and you get what I got just because you are ill. I could never work for someone that doesn’t even care if I am dead or alive as long as their work gets done. That’s really unfair and nasty. What horrible employer does that?”[91]The emails sent by the Claimant were on any analysis unprofessional, deeply offensive, insulting, threatening and some of them clearly blackmailing. If the Claimant had genuine safeguarding concerns she was perfectly within her rights to raise them through the appropriate channels. However, to threaten to do so if she was not paid what she wanted to be paid (although she was not contractually entitled to it) cannot be anything other than blackmail. She was demanding money with threats to make trouble for the Respondent if the money was not paid. They would have been distressing to many of the recipients. In her evidence to the Tribunal the Claimant vacillated between accepting that her emails were inappropriate but that they were attributable to her autism and stating that what she said was the truth.[92]On 1 January 2018 the Claimant sent Ms Wilson and Ms Quartey an email that she would be self-certifying her sickness absence from 3 January for 7 days. She said that she was not starting it on 2 January because that was not a working day for staff at the school. She said that she was unable to attend work because of severe pain and restriction of movement in her leg and back, stress and anxiety and insomnia caused by bullying at work and exhaustion caused by overload at work. Ms Wilson responded by referring her to her contract and reminding her that senior leadership would be working on 2 January 2018. She also told her that they were expecting her attendance at the disciplinary hearing and that it was in her best interest to attend. The Claimant said that she had been informed that she was required to attend work on 2 January. She said that she was too stressed and physically unable to attend. She was on crutches and wanted to fully rest her leg. She said that she would be self-certificating from 3 January and would provide a sick note form the doctor on 10 January if that was required.[93]The disciplinary hearing was chaired by Ms Jess and started at 11 a.m. She waited for the Claimant until 11.20. The Claimant did not attend. Ms Jess decided to proceed with the hearing in her absence. She considered the allegations against the Claimant, most of which related to the emails and text messages that she had sent since 22 December 2017. It was said that the content of the emails and texts had contained abusive, unacceptable, unprofessional and blackmailing language about the school and staff members. She had continued sending these emails after the school’s position regarding sickness pay entitlement had been explained to her and she had been requested to stop sending distressing emails to staff. After her work email account had been disabled she had continued to contact staff by using their personal email addresses and telephone numbers. Ms Jess concluded that the Claimant’s conduct amounted to gross misconduct. It was not in dispute that the Claimant had sent the emails and the content spoke for itself. Ms Jess concluded that her conduct had brought the school into disrepute, she had shown no respect for the Principal, her line managers and her colleagues; She had used inappropriate language and had been very unpleasant in her emails and text messages; she had harassed her managers and her peers; her conduct had been unacceptable and could put the school in breach of its regulatory requirements. She decided that she should be dismissed immediately without notice.[94]The decision was set out in a letter dated 3 January 2018 and was sent to the Claimant on the same day to her personal email address and by post. She was advised that her employment had been terminated as of 2 January 2018 and that she would be paid until that date on 28 January 2018. She was advised of her right of appeal and informed that if she wished to appeal she had to do so by 10 January. She was instructed to return any property belonging to the Respondent, including her laptop and keys, immediately. There was nothing in the evidence before us to show that the Claimant had been paid anything at end of January 2018 Her P45 showed her employment has having terminated on 31 December 2017.[95]On 4 January the police attended the school having been contacted by the school. Several employees made statements about the emails and the text messages that the Claimant had sent since 22 December and the effect of those on them. They all said that they had felt harassed and harassment orders were obtained by them. The police visited the Claimant at home and issued her with the harassment orders.[96]On 10 January 2018 the Claimant presented a document comprising 85 pages and entitled “Safeguarding Concerns Insights School” to four local authorities, the Secretary of State for Education and to the Commissioner of the Metropolitan Police. The local authorities investigated the matters and found the complaints about safeguarding to be unfounded on 9 February 2018.[97]On 11 January Ms Wilson wrote to the Claimant and said that as she had not appealed the decision to dismiss her on 2 January stood. She was reminded to return the Respondent’s property.[98]On 12 January 2018 Ms Quartey, on behalf of the Respondent, referred the Claimant to The National College for Training and Leadership (“NCTL”) for serious misconduct. In the form the Respondent was asked to set out the allegations of the serious misconduct. Ms Quartey stated that from the end of September 2017 the Claimant had sent emails that were inappropriate and defamatory about staff members and on 1 October she had sent a proposed restructure to demote senior staff and to elevate herself to Vice Principal. She also said that she had sent an unwelcomed explicitly sexually suggestive text to a senior male colleague who had been very disturbed by it. She then deatl in more detail with the emails sent in December. She said that in December her level of conduct towards her colleagues had escalated by way of malicious and threatening emails which had included threats and blackmails. She said that the Claimant had not attended the disciplinary hearing and had sent an email to staff telling then that she did not intend to attend and mocking the process and the senior staff. She referred to the police being involved and the harassment orders that had been obtained, She concluded by saying, “We are concerned about her malicious and damaging conduct which is a direct violation of the teaching standards, ethics and expected professional conduct within the teaching profession. We are also concerned about her physiological state which from what we have experienced does not enable her to remain within professional boundaries and be responsible for the social, moral, emotional and spiritual development of children and young people.”[99]On 23 January Ms Quartey wrote to the Claimant and asked her to ensure that the laptop, keys and any other property belonging to the school were returned by 26 January 2018 to avoid any further action. The property was not returned by that date and someone from the school called the Claimant on 6 February to chase it up. The Claimant wrote to Ms Quartey on 7 February. She said that once her queries about her pay had been cleared up to her satisfaction and money owing to her had been paid, they could meet to swap property. She said that she had property at the school which she wanted returned to her. This comprised a scarf and a pencil case and its contents. The police arranged for a local police officer to meet the Claimant at the school the following day to facilitate a swap of the items. The Claimant did not attend.[100]On 28 February the Safeguarding Review and Quality Assurance Manager from the London Borough of Ealing wrote to the Claimant about the concerns that she had raised. The letter said that extensive enquiries had been carried out – all the other boroughs had been consulted, police checks had been undertaken and meetings had been held and site visits carried out. They had determined that while there were standards of care issues at the school, the allegations of harm were unfounded,[101]On 13 March 2018 Ms Quartey asked the police whether they could assist in recovering the school’s property from the Claimant.[102]On 16 March 2018 the NCTL wrote to the Claimant informing her of the referral made by the Respondent and that it was launching an investigation into whether she had been guilty of unacceptable professional conduct and/or conduct that might bring the profession into disrepute. She was sent the referral documentation and asked to respond to it by 13 April 2018.[103]On 29 March 2018 a recruitment agency asked Ms Quartey to provide a reference for the Claimant. The agent subsequently spoke to Ms Quartey, who said that she was in Australia and would not be able to provide the reference until 16 April at the earliest. Ms Quartey provided the reference on 19 April 2018. She did not fill in the reference form which, among other things, asked for assessment of the Claimant’s “communication skills” and “willingness to accept authority and regulations” and the referee’s opinion as to whether the Claimant displayed a high degree of honesty and integrity. Instead she wrote a brief letter confirming the Claimant’s dates of employment and stated that her employment had been terminated for gross misconduct.[104]On 19 May 2018 the police wrote to the Claimant about the property that had not been returned to the school. The police officer urged her to return the items and said that if they were not returned the allegation of theft would be pursued or, if the laptop was broken or not in working order, an allegation of criminal damage would be pursued. He asked her to arrange a time when he could collect the items from her or alternatively to bring them to the police station. On 30 May the Claimant said that she would drop the laptop at Hounslow station the following day. When the laptop was returned the operating system had been wiped and it could not be used.[105]On 20 June 2018 the Teaching Regulation Agency (“TRA”) wrote to Ms Quartey the outcome of the referral made by her. The TRA had determined that it should close the matter with no further action. It concluded, “It was considered that Ms Kaler’s behaviour was unprofessional, and it was noted that a first warning harassment warning was issued to the police. However, having considered all the evidence presented, it is decided that in this case the alleged conduct is not of sufficient seriousness or occurrence to reach the level required by the Department for Education advice on The Prohibition of Teachers. Therefore, there was not a realistic prospect of a prohibition order being imposed and the case will be closed with no further action.” There is nothing in that document to indicate that the Claimant had said in her defence that she had sent the emails in December 2017 because she suffered from Asperger’s Syndrome.[106]The Claimant was referred for an Autism Assessment in June 2018 and was assessed on 12 August 2019 by Charles Parkes, Clinical Psychologist, who diagnosed her as having Autism Spectrum Disorder (“ASD”). That was the first time that the Clamant was diagnosed as having ASD. There was no previous diagnosis of ASD or Asperger’s Syndrome. In order to complete his assessment Mr Parkes gathered information from the Claimant, conducted various assessments and obtained information from others who had had close dealings with the Claimant. He concluded that all those revealed, “a consistent pattern of significant difficulties which meet the criteria for a diagnosis of Autism Spectrum Disorder (ASD) (DSM-V). Specifically, Kuldeep has difficulties in communicating effectively with others; difficulties in understanding and sustaining relationships; a restrictive and repetitive pattern of behaviour, interests and activities and a number of sensory interests and insensitivities… The diagnosis of ASD means that the individual has difficulties in three major areas, outline below. Please note that this is a spectrum condition which means that while all individuals with ASD share certain difficulties, their condition will affect them in different ways.• Difficulty communication effectively with others This can involve difficulties processing and retaining verbal information; literal interpretation; difficulty understanding jokes and sarcasm; difficulties with the social use of language; difficulties understanding and using body language, facial expression and gesture.• Difficulty in social relationships This can involve difficulties with friendships; working cooperatively and engaging in social activities; coping with unstructured time; understanding social rules and norms which may sometimes lead to unusual and inappropriate responses.• Restricted, repetitive patterns of behaviour, interests and activities This can involve a lack of social imagination and creative play; difficulties with flexibility of thought; difficulties coping with changes in routine and environment and a tendency towards unusual, restricted and intense interests.”[107]The Claimant had included in the documents before us a number of articles about ASD and Asperger’s Syndrome. We quote below what two of them had to say about “meltdowns”. “A meltdown is where a person with autism or Asperger’s temporarily loses control because of emotional responses to environmental factors. They aren’t usually caused by one specific thing. Triggers build up until the person becomes so overwhelmed that they can’t take in any more information… They can look like a common or garden tantrum, [sic] but unlike tantrums, meltdowns can’t be stopped by giving the person their own way… After a meltdown the person often feels ashamed, embarrassed and very tired.” “It is not uncommon for adults with Asperger’s Syndrome to experience meltdowns. They occur when the person becomes completely overwhelmed and temporarily loses control over his or her behaviour. This can take the form of shouting, screaming, crying, kicking, lashing out, or head banging. Or it can be the opposite, such as refusing to interact, withdrawing completely or becoming mute. Meltdowns are not the same as temper tantrums, although they may appear similar. A meltdown is an intense response to situations that overwhelm one’s coping abilities. The person is literally unable to stop reacting to a complete assault on his or her psychological and physical systems. This is different from not getting one’s way and trying to manipulate people, the essence of temper tantrums. Because a person’s coping ability is overwhelmed during a meltdown, it is largely an involuntary response rather than a willful, intentional act. The person, to a large extent, does not have control over what is happening during the meltdown, although anticipating the meltdown and addressing the aftermath of it are in one’s control.” Conclusions Knowledge/imputed knowledge of disabilityConclusions
[108]We considered first whether the Respondent knew or could reasonably have been expected to know that the Claimant had ASD/Asperger’s Syndrome in 2017. The Claimant was first diagnosed as having ASD in August 2019, twenty months after her employment terminated. The Claimant first worked for the Respondent from March to June 2013. In her application form at that time she stated that she did not consider herself to have a disability or any other medical condition that might affect her ability to do her job. The comments made in her reference about her interpersonal skills and relationships indicated strongly against her having ASD/Asperger’s Syndrome. In June 2013 the Claimant told Ms Quartey that she was in the process of getting a diagnosis as she believed that she had Asperger’s Syndrome. She ceased working for the Respondent very soon after that and did not say anything more about what the outcome of the process had been. In an email on 13 September 2013 she said that she had been dealing with her Asperger’s and could deal with situations much better.[109]The Claimant did not work again for the Respondent until January 2017, 3.5 years later (other than a couple of days in 2016). She did not at that stage say anything about what the outcome of the diagnosis had been. There is no reason why Ms Quartey would have recalled at that stage the email the Claimant had sent her 3.5 years earlier. The Claimant did not at any stage, while working for the Respondent on a consultancy basis in the first half of the year, tell the Respondent that she had ASD or Asperger’s Syndrome and did not give the Respondent any basis for thinking that she might have it. When the Claimant was given the job description for the Assistant Vice-Principal role in June 2017 she did not inform Ms Quartey or anyone else that she would need adjustments made because she had ASD/Asperger’s Syndrome. On the contrary in her application form she claimed that she able to communicate effectively, was a natural problem solver and a logical thinker who could think on the spot. She did not at any stage while she was in that role says that she had Asperger’s or that she needed any adjustments made because of that. There were two references to Asperger’s during her four months of employment. The first was in the email that she sent to Ms Quartey on 21 September 2017 in which she enclosed documents that she had written four years earlier shortly after she had realised that it was “highly likely” that she was an “aspie”. The second was that in conversations with Ms Poullos she referred to herself as “Aspie” and hence that appeared on her birthday cake which would have been seen by other employees. We do not accept that her other colleagues used that name for her. We do not accept that on the basis of those two references and what the Claimant had said about trying to get a diagnosis four years earlier the Respondent could reasonably have been expected to know that the Claimant had ASD or Asperger’s Syndrome, especially when there was evidence which clearly indicated the contrary. We concluded that in 2017 the Respondent did not know and could not reasonably have been expected to know that the Claimant was disabled because she had ASD or Asperger’s Syndrome. Direct disability discrimination/harassment related to disability[110]Complaints about any acts or omissions that occurred before 28 November 2017 will have not been presented in time unless they formed part of an act extending over a period with acts that occurred after that date. If we do not find there to be any acts of disability discrimination after that date, the complaints about acts before that date will not have been presented in time and we would only have jurisdiction to consider them if we considered it just and equitable to do so. The Claimant has not put forward any reason why she did not commence EC and issue a claim earlier if she believed that that she was being subjected to discrimination from May 2017. The Claimant did not raise a grievance or take any action to make a claim to the Tribunal until after she had been dismissed. We concluded that it would not be just and equitable to consider complaints about acts or omissions that occurred before that date.[111]In case we are wrong in that conclusion, we set out briefly what our conclusions would have been on those complaints. Although the Equality Act does not specifically provide that there can be no direct disability discrimination or disability-related harassment in the absence of the respondent having actual or imputed knowledge of the claimant’s disability, the cases where those claims will succeed in those circumstances will be rare. A complaint of disability-related harassment might succeed, for instance, if someone makes offensive remarks about a particular disability without knowing that the claimant or someone in her family has that disability. It is difficult to think of circumstances in which a complaint of direct disability discrimination will succeed if the respondent has no actual or imputed knowledge of the claimant’s disability.[112]We have found that many of the acts of which the Claimant complained did not occur or, if they did occur, they did not amount to a detriment or unwanted conduct which had the proscribed purpose or effect. We have not found that in May and June Ms Quartey and Mr Connell made the comments which the Claimant says that they made or that Ms Quartey sent her to three libraries a day (paragraph 32(2) and (3) above). We have not found that the Claimant’s workload was increased in September 2017 or that Ms Quartey and Ms Wilson behaved as alleged by the Claimant at paragraphs 32(4) – (7) above. The Claimant started her new role on 1 September 2017. Clearly, that meant that she had more work than she did in her previous role. On 11 September Ms Quartey and Ms Wilson clarified to the Claimant what she was expected to do in the first half of the term. The Claimant did not respond by saying that it was excessive and she could not do it. The Claimant’s emails were not ignored. Ms Quartey and Ms Wilson spoke to the Claimant about the emails that she had written. They did tell her that some of her emails were inappropriate and unacceptable. It was not appropriate to demand that named employees be disciplined for performance concerns in emails to the whole Senior Leadership Team. It was not acceptable to make serious criticisms about an employee at the same level as her in the way that she had. By pointing that out to the Claimant they did not subject her to a detriment or harass her (as defined in section 26 of the Equality Act 2010). The Claimant complained about the distribution of work in her email of 17 October (paragraph 32 (8). The fact that the issue was not raised again by the Claimant suggests to us that Ms Quartey did speak to her about it[113]Even if any of those acts did occur or they amounted to detriments or harassment as defined by section 26 of the Equality Act 2010, there was no evidence from which we could have inferred that they had anything to do with the fact that the Claimant had ASD/Asperger’s Syndrome. We have already concluded that the Respondent did not know and could not reasonably have been expected to know that the Claimant had that condition at the time it took those actions. The Claimant’s case that the Respondent was subjecting her to detriments and unlawful harassment because she had Asperger’s Syndrome does not make any sense in circumstances where the Respondent had encouraged her to apply for and had appointed her to the Assistant Vice Principal role. Her case is not that they suddenly found out about the Asperger’s Syndrome after September 2017. Her case is that they had known about it. We find that the reality is that the Claimant was out of her depth in that role. She had not held such a senior role before and she did not have the skill set and the experience to perform in it.[114]Had we considered those claims we would have concluded that they failed because the Respondent did not subject her to a detriment or harass her and its actions were not because of, or in any way related to her Asperger’s Syndrome/ASD.[115]The same points apply equally to the complaints that were presented in time. We have not found that Ms Quartey and Ms Wilson behaved as alleged by the Claimant at paragraph 32(9) above. On 1 December 2017 Ms Quartey and Ms Wilson tried to contact the Claimant because she did not report her sickness absence in accordance with the Respondent’s sickness absence reporting procedure. Ms Wilson said that there was an expectation that SLT members would come into school. She did not say that that the Claimant had to come into work even though she was ill. We have not found that on 11 December the Claimant told Ms Quartey and Ms Wilson that she was being bullied and harassed because of her Asperger’s or that they sniggered or smirked. There was a discussion about the Claimant’s resignation because she had sent in an email on 1 December saying that she wanted to resign and the notice that she was required to give. We have not found that Ms Quartey and Ms Wilson behaved as alleged by the Claimant at paragraph 32(12) above. The Claimant was involved in an incident while on door duty on 14 December. The Claimant went to the hospital. Ms Wilson tried calling her to check on her welfare. The Respondent accepted the Claimant’s resignation on 15 December. Mr Anvi and Ms Jess did not submit incident reports about the incident on 14 December after the Claimant asked them to do so on 18 December. The Claimant was not paid full pay on 22 December because she was not contractually entitled to full pay during periods of sickness absence. The Claimant’s email of 22 December querying that was not ignored. Ms Jess responded to it the following day. On 23 December the Claimant was invited to a disciplinary hearing on 2 January 2018 because of the emails that she had sent to the Respondent’s employees on 2 and 23 December. The disciplinary hearing was held in her absence and she was dismissed. The Respondent contacted the police in respect of the emails that the Claimant had sent its employees and in respect of its property that the Claimant had not returned after several requests to do so. The Respondent reported the Claimant to NCTL because of her conduct at the end of December 2017. We did not find that the Respondent engaged in passive aggressive bullying of the Claimant and that this led to her “blowing up.”[116]In respect of the acts that we found had occurred, there was no evidence that the Respondent treated, or would have treated someone who did not have Asperger’s Syndrome/ASD, any differently in similar circumstances. There was no evidence from which we could infer that the Claimant had been treated the way that she was treated because of her disability or that it was harassment related to her disability. We considered separately below whether the dismissal was disability discrimination under section 15 of the Equality Act 2010.[117]As we have said at paragraph 113 (above) the Claimant, having provided teaching services to the Respondent as a consultant between January and July 2017, was encouraged by the Respondent to apply for the Assistant Vice Principal and was appointed by the Respondent to that role. The Claimant had not held such a senior role before, Within a month of starting in the role the Claimant made it clear that she was very unhappy in that role and wanted to give it up. The Respondent’s attitude towards the Claimant had not suddenly changed. The Claimant was struggling in the new role because she did not have the skillset and the aptitude for that role. Whether her disability contributed to her difficulties was not clear from the evidence before us. What is clear that she did not tell the Respondent that it did and the Respondent could not reasonably have been expected to know that any of its practices put her at a substantial disadvantage because of her disability. Failure to make reasonable adjustments/discrimination arising from disability[118]Our conclusions on the Respondent’s knowledge of the Claimant’s disability essentially means that these claims cannot succeed. There are additional reasons why these claims would not have succeeded. We have not found that the Respondent failed to provide the Claimant with clear instructions, failed to manage her relationships with her colleagues or that it failed to provide her support or to empathise with her. On the contrary, we found that she was given clear instructions, she was given advice about how to manage her relationships with her colleagues and was supported in her work (see paragraphs 59, 61 and 65 above). At no stage did the Claimant say or indicate that she had a disability which made it difficult for her to do a certain amount of work or to work a certain number of days or hours. At the end of September she said that she was very unhappy in her role because of her relationship with Mr Agyapong. As a solution, she proposed that she be given a more senior role, that of Vice Principal. She said that the problem was that she felt “very underused.” Her criticism about workload on 17 October was not that it put her at a disadvantage because of any disability, but that there was an unfair split of the workload, she was being given more than others. In her resignation of 1 December she said that the job was not for her because she was not given sufficient time to perform all the duties that she was expected to perform to the best of her ability. She did not say that that had anything to do with any disability that she had.[119]The Claimant was dismissed because of the emails and text messages that she sent to the Respondent’s employees between 22 and 26 December 2017. The emails and text messages were offensive, insulting, inappropriate, threatening, blackmailing and distressing to those who received them. The Claimant’s case is that she sent those emails because of a “meltdown” or “blow up” that she had because of her ASD/Asperger’s Syndrome. Her case was that she communicated in that way because of her Asperger’s Syndrome/ASD. Leaving aside the issue of the Respondent’s actual or imputed knowledge of her disability, in order for the section 15 claim to succeed the Claimant would have had to establish(a) that she had a “meltdown” or a “blow up” that caused her to send those communications and(b) that the “meltdown” or “blow up” was connected with her having ASD/Asperger’s Syndrome.[120]There was no medical evidence before us that between 22 and 27 December 2017 the Claimant had a “meltdown” or a “blow up”. There was no medical evidence before us that one of the features of the Claimant’s ASD was that she could in certain circumstances have a “meltdown” which would lead to them sending the kind of communications that the Claimant did. There is no reference to it in the report of Mr Parkes. There was no medical evidence that the Claimant had sent the communication because she had had meltdown because she had ASD. Therefore, we could not have concluded that she had behaved in that way in consequence of her disability. The articles produced by the Claimant did not provide us with much assistance. They are general and not specific to her. Furthermore, the Claimant’s circumstances do not fit in with some of the features of meltdowns discussed in those articles. They say that a meltdown is not usually caused by one specific thing, the Claimant’s conduct was caused by her not receiving her full pay on 22 December. The articles say that meltdowns cannot be stopped by giving the person their own way, the Claimant’s emails seemed to say that if she received full pay the issue would be resolved. The articles say that after a meltdown the person often feels ashamed and embarrassed, there was no evidence of the Claimant feeling that way.[121]Even if we had concluded that the Respondent had had actual or constructive knowledge of the Claimant’s disability at the material time and that she had behaved the way that she had because of something arising in consequence of her disability, the Claimant’s complaint would have failed if the Respondent had shown that dismissing her was a proportionate means of achieving a legitimate aim. The legitimate aims relied upon by the Respondent were ensuring the appropriate levels of professionalism and conduct in the work place, maintaining respect and dignity in the workplace for all its employees and ensuring the health, welfare and safety of its employees. In circumstances where the Claimant had sent the emails set out at paragraphs 80 to 90 above to a large number of the Respondent’s employees outside working hours and that she had continued to do so after she had been told to stop sending them and she had not thereafter not provided any explanation for her conduct, acknowledged that she should not have sent them or given any indication that she would stop, we would have concluded that starting the disciplinary process against her and dismissing her had been a proportionate means of achieving the Respondent’s legitimate aims. Victimisation[122]We have not found that the Claimant did any protected act 0n 11 December 2017. It was not in dispute that the Respondent would have known between 27 February and 27 March 2017, while the Claimant engaged in Early Conciliation, that she intended to do a protected act and that she did so on 30 March 2018 when she presented her claim to the Tribunal.[123]The reporting of the Claimant to the NCTL took place before the protected acts and, therefore, could not have been caused by them. The Respondent reported the Claimant because it had genuine concerns about the Claimant’s threatening and inappropriate behaviour. There was a delay in providing the reference for the Claimant because Ms Quartey was abroad during the school holidays. The reference provided was brief and true. Neither the delay or the content of the reference was because the Claimant had done the protected acts. The Respondent involved the police again in May 2018 because, in spite of having been asked to do so several times since January 2018, the Claimant had not returned the Respondent’s property which was in her possession. It was not because she had done any of the protected acts. Breach of contract[124]The Claimant’s conduct set out at paragraphs 80 – 90 above and summarised in paragraph 91 amounted to gross misconduct and a repudiatory breach of her contract of employment and the Respondent was entitled to dismiss her without notice. Unauthorised deduction from wages[125]The Claimant was entitled to be paid her wages for 1 to 3 January 2018, when the termination of her employment was communicated to her. It appears from the evidence before us that she was not paid any wages for those three days. She is entitled to be paid for those three days. _