Neurodiversity in the workplace and the Employment tribunal

Employers are becoming increasingly aware and attuned to the competitive advantage that comes with promoting and supporting a neurodivergent workforce. Neurodivergent employees possess a unique set of skills and talents which allow businesses to thrive, particularly in the areas of creativity, innovative thinking and diversity of thought.

It is estimated that around 15% of the population in the UK are neurodiverse and research undertaken by Hewlett Packard Enterprise suggests that teams with neurodivergent professionals in some roles can be 30% more productive than those without them. The British spy agency GCHQ and weapons manufacturer BAE Systems issued an appeal in 2022 to attract more neurodivergent women to work for them in cybersecurity jobs, as these roles required fast pattern recognition, sharper accuracy and greater attention to detail.

It is no surprise, therefore, that employers are seeking to recruit from this wider pool of talent and are being actively encouraged to do so. Difficulties inevitably arise, however, when employers are not upskilled on managing neurodivergent employees. It's perhaps not surprising, therefore, that we are seeing a rise in neurodiversity-related discrimination claims.  Employers need to remain ahead of the curve in terms of what is, and is not, inclusive practice and ensure that they know how to manage neurodiverse employees effectively in order to maximise the prospects of a successful employment relationship.

In this article we have analysed two recent Tribunal cases which looked at the issues that can arise when neurodiverse employees cite their neurodivergence as the cause of misconduct.

Morgan v Buckinghamshire Council

This case focused our attention on neurodiversity in the workplace in late 2022 and demonstrates the care which should be exercised by employers in terms of their use of language, as well as the importance of obtaining and implementing Occupational Health recommendations.

Facts

The claimant was a social worker in Buckinghamshire Council's fostering team who had autism and dyslexia, among other conditions. She was dismissed for misconduct after she gave gifts to a child without permission from her manager and because of an inappropriate case note that she had written.

The claimant asserted that her dismissal was unfair and discriminatory, mainly on the basis that her autism had impacted her judgment and understanding in relation to the gift-giving policy and appropriateness of the case note.

Whilst the tribunal accepted that the conduct for which the claimant was dismissed likely resulted from her autism, it also found that her employer was justified in dismissing her as this was a proportionate means of achieving a legitimate aim, namely the maintenance of professional boundaries.

Of particular relevance in this case was that the claimant had declined an occupational health assessment, which meant that her employer had not been given any advice on whether this behaviour was likely to reoccur (and therefore the level of risk associated with continuing to employ her).

The claimant did, however, succeed in her claim for disability-related harassment. This related to the following statement made by the appeal officer in the appeal decision:

"… it is also of great concern that you chose to withhold your autism through ‘masking’ throughout much of your employment, potentially putting at risk the vulnerable children with which you were working."

The tribunal held that it was offensive for the appeal officer to suggest that the claimant had chosen to act deceitfully in concealing her autism – when in fact she was simply masking her autistic symptoms by emulating learned behaviours, a practice commonly adopted by autistic people. The fact that this statement was a considered observation in a formal letter further substantiated its classification as harassment.

McQueen v The General Optical Council

More recently in 2023, the Employment Appeals Tribunal upheld an Employment Tribunal's decision that the claimant's conduct, which warranted disciplinary action, did not arise as a result of his disabilities for the purpose of his discrimination claim.

Facts

The Claimant, who had dyslexia, some symptoms of Asperger's Syndrome, left-sided hearing loss and neurodiversity was employed by the General Optical Council as a registration officer.

The Claimant was subject to disciplinary action following incidents of aggressive behaviour towards colleagues (namely challenging an instruction from a senior colleague in a rude and disrespectful manner with aggressive gestures and body language), failing to follow instructions, disruptive behaviour and various performance issues.

The claimant brought an employment tribunal claim, alleging that, among other things, he had been subject to unfavourable treatment because of something arising in consequence of his disability. The Tribunal rejected this argument and found that the claimant's conduct arose "because he had a short temper, and he resented being told what to do" rather than as a consequence of his disability.

The Claimant appealed this to the EAT, arguing that the disability does not necessarily need to be the sole or even main reason for the behaviour. The EAT rejected the Claimant's appeal. The tribunal had found that the effects of the claimant's disability did not play any part in his conduct. It therefore did not consider the question of whether the behaviour being a part influencer would be sufficient. This remains to be tested in the tribunals.

Lessons for Employers

These cases demonstrate that the tribunal, where it deems appropriate, is entitled to find that the behaviour of an employee that is in dispute does not necessarily arise from their disability or neurodiversity. The effect of this is that the dismissal of neurodivergent or disabled employees can potentially be justified where the behaviour for which they were dismissed is a result of some other factor not relating to their neurodivergence or disability. An important factor will be distinguishing which behaviours are personality traits and which arise as a consequence of a disability.

Nonetheless, these cases serve as an important reminder to employers that employee's disabilities (particularly those which are hidden) may have an impact on their conduct and performance and will need to be considered carefully.

The case of Morgan specifically emphasises the importance of staff training and awareness around the topic of neurodiversity, given that the appeal officer may not have made the suggestion that the employee's adoption of a typical coping mechanism was deceitful had they been more educated on the norms of neurodiverse behaviour, which was found to be discriminatory.

Some easy steps which employers can take to assist neurodivergent employees in the workplace are as follows:

• Have an up-to-date and easily accessible Reasonable Adjustments Policy in place which covers disability and neurodiversity in full.
• Where reasonable adjustments are made to accommodate an employee's neurodiversity, have regular check-ins with the employee to ensure the adjustments remain suitable.
• Make it easy to access support (for example, having an 'FAQ' resources page).
• Use positive, inclusive language and encourage all employees to do the same.
• Raise awareness through staff training to dispel myths and misconceptions.
• Avail of external support in times of uncertainty.
• Consider practical steps which can be taken to make the workplace more inclusive (for example, providing a workspace with fewer distractions and background noise for employees who are more sensitive to stimuli, providing noise cancelling equipment or providing assistive technology such as a screen reader or tinted screen for dyslexic employees).
• Most importantly, not falling victim to a culture of generalization. Every neurodivergent person is different and should be treated as such.

"If you've met one person with autism, you've met one person with autism" (Dr. Stephen Shore).

For more information please contact Shirley Blair, Of Counsel, Olivia Boyle, Solicitor or your usual Employment and Incentives Belfast team Contact.