Knowledge of neurodiversity

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:

Masking and dismissal for gross misconduct:
Morgan -v- Buckinghamshire Council

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.

No condition recorded in medical questionnaire:
Fabian -v- City Plumbing Supplies

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.

Understanding the condition and its effects:
Jandu -v- Marks & Spencer PLC

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.

Top tips:

• From the outset consider how to make your recruitment and onboarding processes more neuro-inclusive.
• Consider how issues such as performance management can be dealt with in more explainable and concrete ways during employment.
• Consider the work environment and where it might be creating or perpetuating a sensory overload.
• Encourage staff to keep you updated with their medical information, including any new diagnosis. Equal opportunities monitoring is not just for new starters, and questionnaires can be sent at regular intervals.
• Consider offering training to managers and others on how to spot indicators of a neurodivergent condition.
• Always consider seeking medical evidence on the effects of any condition and how it may affect employee behaviour and performance, plus what reasonable adjustments can be made.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.