Watson v Roke Manor Research Ltd: When non verbal acts become discrimination

The ET found that the actions of his manager had amounted to discrimination because they were connected to aspects of Mr Watson’s condition. This is perhaps what we would view as “subtle aggression” and was not about what was said to him, but the body language displayed.

The employee met the definition of disabled as set down by the Equality Act 2010. He was successful in establishing (a) that there was a failure to make reasonable adjustments (b) that he had been subject to harassment related to his disability and (c) discrimination arising from a disability.

The Judge noted that there was a lack of training and support available and a suggestion that neurodiversity was either misunderstood or not recognised. In particular, whilst the manager was under pressure and found the issue to be a source of genuine frustration, this did not excuse his treatment of Mr Watson.

Importantly, the ET criticised the employer for not looking into the causes of the issues- i.e. his poor timekeeping and absence. This was poor management and WOULD HAVE allowed them to find out what was going on and work out how to deal with it. Had they identified what adjustments could have been made, they could have supported both Mr Watson and his manager and thus avoided the pressure and frustration that led to the discriminatory behaviour. In short, it would have meant a better outcome all around.

What we learn from this

This case tells us a number of things. It may come as a surprise to some employers that ADHD is a form of disability covered by the Equality Act – this is a problem as failure to realise this means that you cannot adequately train managers to look out for the signs.

In this case, steps should have been taken to identify the cause of the issues. Instead, matters escalated with no intervention or constructive support for either employee or manager.

Better training is required to teach staff about the importance of good management and avoiding gestures like eye rolling and exaggerated sighing. These are never signs of good people management and, in this case, amounted to unlawful harassment.

Staff need to be aware of the connotations carried by their tone, their facial expressions and their body language when dealing with their colleagues, especially those over whom they have managerial responsibility.

Non-verbal cues can also be more significant for people who are neurodiverse, and this needs to be recognised. Think about your understanding of what a hostile working environment might look like – for everyone. Remember that it is not a question of intent, but rather how the behaviour is perceived. An inclusive workplace should work to eradicate hostility, even in more subtle forms.