Neurodiversity and Disability Discrimination

Spotlight on Neurodiversity and Disability Discrimination

On June 25th, statistics from the Ministry of Justice, disability discrimination has been reported as one of the top three claims made to an employment tribunal (ET) and claims relating to neurodiversity in particular are on the rise.

This suggests that employers could be failing to understand their obligations towards their neurodivergent staff or are failing to appreciate the impact neurodivergence can have on individuals.

In light of this, we have covered some of the recent case law around disability discrimination and neurodiversity, along with key takeaways for employers.

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Watson v Roke Manor Research Ltd

Watson was a Software Engineer with Roke Manor Research who had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in November 2022, two years into his employment with the Company.

Watson struggled with timekeeping and focus, and the Technical Lead confronted Watson in front of colleagues and also during one-to-ones. In these interactions, the Technical Lead also displayed non-verbal cues of frustration, including exaggerated sighs and exhales.

When Watson addressed how these behaviours from his boss made him feel, the Technical Lead explained that they were deliberately accentuated reactions and that Watson should put his “ADHD aside for a moment”.

As a result, Watson began experiencing stress and anxiety, and after a period of prolonged absence from the Company, he was dismissed.

Following his dismissal, Watson raised claims to the tribunal for unfair dismissal and disability discrimination.

The ET upheld Watson’s claim of disability discrimination only, citing a lack of support from the employer, who had failed to consider reasonable adjustments to accommodate Watson’s ADHD.

The Technical Lead’s inappropriate comments and behaviour related directly to Watson’s disability, and the Judge argued that that would have had a significant impact upon his anxiety levels.

The employer appeared unwilling to understand the impact neurodivergence was having on Watson, instead trying to make Watson “change his ways” rather than making reasonable adjustments for him.

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Stedman v Haven Leisure Ltd

In this case, the EAT have upheld Stedman’s appeal against the original ET’s decision that Stedman was not considered disabled under the Equality Act 2010.

Stedman was formally diagnosed with ADHD and Autism Spectrum Disorder (ASD).

He had applied for a role with Haven Leisure Parks Ltd as an Animation Host and, on being rejected for the role, Stedman raised a claim of disability discrimination in how the Company had dealt with his application.

The original ET determined that Stedmen was not considered disabled, based on the definition in s.6 of the Equality Act 2010, as they argued that he was capable of several social activities and had achieved multiple qualifications.

As such, his impairment was not considered to have a significant impact on his day-to-day life.

On appeal, Stedman argued the ET had failed to account for a number of factors, including a report from a recognised clinician confirming his diagnoses, which had been submitted to the tribunal.

The EAT reviewed the ET’s decision and upheld Stedman’s appeal, agreeing that there were several factors not considered and that the ET had focused more on what Stedman could do as opposed to what he could not do.

In addition, the EAT argued that Stedman’s ability in certain tasks, such as performing in public or undertaking a degree, did not mean he wouldn’t face any difficulties in other areas, and did not face adverse effects as a result of his conditions.

As a result, the EAT have issued a full rehearing of the case to be carried out with a new ET.

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Saunders v Peloton Interactive UK Ltd

Saunders started as a part-time Member Experience Associate with Pelton and later moved into the role of Studio Concierge.

These were both public-facing positions.

Saunders made requests for reasonable adjustments on joining the company because of his autism, and his requests were initially met by the Company during their “pre-opening period.”

These adjustments included wearing sunglasses inside and avoiding travel at peak times.

However, once open to the public, the environment became highly stimulating with people, noise and bright lights and caused Saunders to experience “sensory overload”.

Peloton failed to support Saunders in finding a less public-facing or sensory-stimulating role, which he had requested on multiple occasions.

In addition, while a plan was made to provide Saunders with regular 15-minute breaks following an Occupational Health report, these were not consistently applied in practice.

Saunders subsequently went on sick leave and then resigned and claimed disability discrimination at the tribunal.

The ET upheld the claim, stating that while the loud and bright environment might be necessary for the operations of the business, Peloton had failed to provide and maintain sufficient reasonable adjustments for Saunders and should have found a role with minimal or no public-facing duties.

Where an employee is struggling with the requirements of their role, and the employer is aware, or should be aware, the employer must take steps to fully understand the barriers faced and make adjustments for them.

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James v The Venture (Wrexham) Ltd

In this case, James worked as a Children’s Centre Worker.

James is autistic and had requested reasonable adjustments as the workplace played background music, which caused him difficulties with his concentration.

In a meeting to discuss the proposed adjustments, the CEO had referred to them as a “pain in the a**e” and implied that James was a “weirdo.”

The CEO also made comparisons between James’ difficulty concentrating with being hungover.

James was removed from his duties and later suspended due to safeguarding issues.

Following this, James brought claims for disability discrimination alongside failure to make reasonable adjustments, harassment related to disability and victimisation.

James told the tribunal he was continually disregarded because of his condition.

The CEO acknowledged that although his comments were only meant as a joke, they were not appropriate.

As a result, the ET upheld some of the claims brought by James, and James was awarded over £17,000 in compensation.

Again, this case highlights that an employer must fully understand an employee’s condition and not assume that certain behaviours are within their control and could be corrected.

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Summary

These tribunal cases highlight the importance of understanding around neurodiversity and disability within the workplace.

Employers must understand an employee’s condition and how the environment can be accommodated to support them, as there is a duty to consider and provide reasonable adjustments.

Importantly, employers should also avoid assumptions about what disability or neurodiversity is and accept that certain behaviours are beyond their control.

Need guidance on managing neurodiversity and avoiding disability discrimination claims? Contact our team for expert, practical support.