Neurodiversity is a term that covers the variety of different ways the brain works and processes information, and includes spectrum disorders such as autism, ADHD, dyslexia, dyspraxia and others. These disorders can bring challenges, but also strengths.
According to the National Autistic Society, there are around 700,000 people on the autistic spectrum in the UK, and all will be different, with different strengths, weaknesses and abilities. Neurodiversity can be a disability under the Equality Act, so it is important for employers to understand and support staff who are neurodivergent and be able to make reasonable adjustments for their individual needs. ACAS has recently published a guide to Neurodiversity in the Workplace, which looks at how employers can support a neurodiverse workforce.
A recent Employment Tribunal case (Mr T Sherbourne v Npower Ltd) has highlighted the importance of employers implementing the correct processes and training when dealing with neurodiverse individuals.
Mr Sherbourne (T) started employment on 2 October 2017 with NPower Ltd (N). He was sat in an open plan office, with a flexible desk policy (meaning he was not always sat at the same desk) and he had a busy walkway behind him. On his second day, his manager (G) had to have an informal discussion with him about his “disruptive and loud behaviour”. There were further instances where T had to be spoken to due to his behaviour and how he reacted over the following days and weeks, and G believed that T was disruptive, argumentative, agitated and displaying unacceptable behaviour. T was feeling isolated and felt he was being treated differently.
By November, T was becoming distressed over changes in his work environment and was displaying physical symptoms including profuse sweating. He felt he was not getting any comfort or support. He asked to work from home but was refused. In February 2018, he had a breakdown at work and was diagnosed with an anxiety disorder. He received counselling and a referral was made for an autism assessment. T also had an appointment with N’s occupational health (OH) team. OH agreed that T was likely to receive a diagnosis of autism and explained adjustments that could be made to G. OH stated that T would “almost certainly” be considered disabled under the Equality Act. The adjustments never took place. Instead, G began a capability process within three weeks of the OH assessment. In a welfare meeting, T asked for a further set of adjustments. G accepted these, but told T he would be invited back for a second capability meeting, which could be a final meeting.
In August 2018, T was invited to discuss the end of his fixed term contract. No mention of any adjustments was made, or their implementation. T did not attend. His employment was terminated from 30 September 2018, the capability process had not been completed and no adjustments had ever been made. T appealed, but the appeal was dismissed. T raised a claim at ET for indirect discrimination and failure to make reasonable adjustments.
The ET found in favour of T. N accepted that T was disabled for the purposes of the Equality Act. N had no autism diversity policy, and G was not aware of any materials or training on diversity and autism. The ET found that there was “continuous management failure… including... failure to understand the Claimant’s disability, failure to implement two sets of adjustments [and] a mixing up of welfare and capability procedures”. N applied a Provision, Criterion or Practice (PCP) by failing to implement reasonable adjustments, inappropriate use of the capability procedure and using dismissal as a tool to “rid themselves of a disabled employee”. The ET found that this PCP would be applied to others sharing the same protected characteristic as T, and it was not a proportionate means of achieving a legitimate aim.
What does this mean for you or your business?
This is only a first instance decision and could be appealed to a higher tribunal or court. However, it is very important to note that the failure by the business to take the time to understand T’s particular difficulties meant that it was discriminating against him.
Although there is no record of the reasonable adjustments that could have been made for T, it is reasonable to assume that finding a quiet space for T to work, away from a walkway, and allowing him to have a fixed desk would have been simple adjustments which may have made a difference early on. His manager made no attempt to understand what autism meant, or how to support and manage a neurodiverse individual.
Secondly, an important point to note is that the use of a capability process when dealing with sickness or disability related capability issues is not appropriate. Welfare and support must be provided first.
There have been other cases of autism related discrimination, for example Brookes v Government Legal Services, in which Ms Brookes (who has Asperger’s syndrome) was successful in an indirect discrimination claim that a requirement to take a multiple-choice application test put her at a disadvantage. This highlights the importance of making sure that reasonable adjustments are made to support people with spectrum conditions – however, it must be noted that this cannot be a “one size fits all” policy, it must be tailored to individual need.
Employers should make sure that they understand the issues associated with neurodiversity, and work with employees to understand how to work productively together. Training, appropriate policies and guidance are important. If you need more help on this, please contact us.
What do you need to be doing now?
Review your policies and practices, and review the ACAS guide to neurodiversity. Make sure managers are aware of the need to support employees, and that employees are able to support one another.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.