We provide the complete commercial debt recovery service; from outsourced early arrears collections through to expert litigation, all handled in-house by a multi-award-winning law firm.
We provide the complete commercial debt recovery service; from outsourced early arrears collections through to expert litigation, all handled in-house by a multi-award-winning law firm.
Insight
A rising number of adult diagnoses of neurodiversity have driven a societal shift, making such conditions more visible than before. We have recently seen an increase in cases coming before the Employment Tribunals (ET) dealing with various conditions such as autism, ADHD and dyslexia. We have, therefore, selected a few interesting cases to report on below:
The employee was dismissed from their job as a social worker for having behaved inappropriately. It was agreed that the conditions of dyslexia, dyspraxia and autism amounted to disabilities of which the employer was aware.
The Tribunal at first level found that the dismissal was fair and a proportionate means of achieving a legitimate aim. The employee had refused an Occupational Health assessment thus denying the employer the ability to determine whether the conduct was likely to be repeated and what measures could be taken to avoid it.
The Employment Appeal Tribunal (EAT) upheld the ET’s findings but found one complaint -that of harassment – in the employee’s favour. The employer had suggested that the employee had chosen to mask her autism thus putting her clients (vulnerable children) at risk. The EAT found that this was an offensive suggestion given that there was no intention to be deceitful, rather than she had learnt behaviours which led to a masking of her autism. They awarded £9,000 in respect of injury to feelings for this issue.
An employee who ticked ‘no’ to having a medical condition or a disability in his medical questionnaire was later unsuccessful in pursuing complaints of disability discrimination before an Employment Tribunal.
He claimed that whilst he had provided these responses on starting work, he had since notified his manager that he had autism and a personality development disorder. His manager denied having been told this. The employee was dismissed after failing his (extended) probationary period and only upon ejection from the building announced he had a disability. The employer, therefore, argued that it did not know and could not reasonably be expected to know of any disability (thus could not be guilty of discrimination). Interestingly, the employer did employ two neurodivergent staff in similar roles and this helped them to establish that had they known, they would have dealt with the situation appropriately.
Our favourite part of the case is that the employee also said he had likened himself to Greta Thunberg in the course of conversation, and that this meant he had officially made his employer aware of his condition. Unsurprisingly the ET found that such a reference was “oblique, unclear and insufficient” to successfully alert his employer to him having a disability.
A dyslexic employee was selected for redundancy on the basis of low scores for leadership, behaviour, and technical knowledge/ability. On challenging these scores, the employee said that her dyslexia made it harder to write emails and some written tasks took longer.
The employer dismissed these arguments and, importantly, chose not to seek advice about the disability and any possible effect it might have. Disability was accepted and knowledge was proven. The ET criticised the managers who had applied the scorings and further ignored her reasons and found that a referral to Occupational Health should have been sought to find out more before dismissing her. If it had, there may have been reasonable adjustments that could (and therefore should) have been made.
Contact Us
For further information or advice on supporting neurodiversity in the workplace, please contact our employment law specialists on 01332 226 155 or fill in the form below.
Related Services
Knowledge