Neurodiversity and discrimination examined in the Employment Appeal Tribunal

We wrote recently about an increase in disability discrimination employment tribunal claims by neurodivergent employees. This recent claim was about whether an employer’s treatment of one such employee was discrimination arising from disability (section 15 Equality Act 2010), which occurs where an employer treats a disabled person unfavourably “because of something arising in consequence” of their disability, and the treatment is not a proportionate means of achieving a legitimate aim.

Employment tribunal was not too strict in its application of “because of” test

Summary of the facts

Mr McQueen brought, among other claims, a claim of discrimination arising from disability against his employer, General Optical Council (GOC). GOC admitted that he was disabled, with dyslexia, symptoms of Asperger’s, neurodiverse traits and left sided hearing loss. It was also accepted that he needed written instructions to back up verbal ones and some physical adjustments. What was still in dispute (both in the Employment Tribunal and then in the Employment Appeal Tribunal (EAT)) was whether some of his conduct and requirements arose from his disability. These included a requirement not to approach him in seemingly confrontational manner, his habit of standing when speaking to colleagues, and his “meltdowns” (as he described his behaviour when he lost control and became loud and angry).

The section 15 test: something arising in consequence of disability

In this type of claim, the employment tribunal asks: what is the consequence of the disability? This identifies what the “something” is.

It then asks whether it is “because of” that “something” that the disabled person has been treated unfavourably.

The “something” causing the treatment does not need to be the only or even the main reason, but it does have to be a more than trivial influence. This is a very broad causation test; if there is some connection between the treatment and something non-trivial arising from the disability, it will be met.

Application of causation test considered by EAT

The Employment Tribunal found that Mr McQueen’s conduct and required adjustments were nothing to do with his disability and that he behaved in this way only because he resented being what to do, had a short temper, and lost it. His section 15 claim therefore failed: they found that he had “become wholly impossible to manage” and that “it [was] impossible to retain him in their employment” – nothing whatsoever to do with his disability.

Mr McQueen applied to the EAT, saying that the Employment Tribunal was too strict in how it interpreted “in consequence of”. The correct test was whether his disability had a “more than trivial influence” on the “something” arising in consequence of it.

The EAT came close to deciding that the case should be remitted back to the employment tribunal for reconsideration but in the end found that it had correctly applied the law. The tribunal had noted Mr McQueen’s disability, made findings about its extent and effect, and ultimately found that his disability had “no part” in his conduct. Because his behaviour and conflict with co-workers were not in consequence of his disability, the question of whether any unfavourable treatment was because of something arising in consequence of his disability did not arise.

Had Mr McQueen argued his case differently (he was a litigant in person), we suspect that he would have been able to establish that connection. A number of the behaviours, were (as noted by the Employment Tribunal) “associated with Aspergers symptoms” such as “difficulty reading social situations, body language, and understanding figurative expressions of speech” and anxiety and loss of control relating to sensory overload.

Practical suggestions for employers

GOC could have implemented a number of strategies to support Mr McQueen. Where employees have neurodivergent needs, consider:

• Pairing them with a “buddy” who can help analyse social cues. A buddy could have helped Mr McQueen by defusing social situations before they became overwhelming.

• Offering or empowering the employee to take breaks (in a dedicated wellbeing room or otherwise), which may help them when experiencing heightened sensory or emotional episodes (and avoid “meltdown” or “shutdown”).

• The physical workplace – excessive light, noise and movement can trigger sensory overload. Had Mr McQueen’s workplace been considered more holistically it might have been made more appropriate for his needs and helped to prevent him from being overstimulated (leading to “meltdowns”: standing up, gesticulating, and speaking loudly when communicating with colleagues at his desk).

• Consider physical aids: Mr McQueen used a recording pen, which colleagues knew would be used in meetings.

• Training for co-workers and managers on neurodiversity so they understand that eye contact, speech patterns and volume, and body language is not the same for everyone. For example, some neurodivergent people (including Mr McQueen) may on occasion speak loudly, interrupt; gesticulate; interpret things literally; repeat themselves or focus on a topic at length. Ensure that there is a communication plan, so that co-workers can support and be sensitive.

• Making sure that clear and specific information is given (avoid hypotheticals and open questions) and consider providing written instructions to back up verbal ones. It caused Mr McQueen great distress when changes were made, so have a clear routine and plan any changes with the employee in good time, with regular reminders of when it will happen and how it may affect them.

Beware the victimisation claim

Whilst all of Mr McQueen’s other claims were dismissed, the Employment Tribunal did find that he had been victimised by the GOC’s delay in handling his grievance. It caused Mr McQueen distress for over a year, not only due to their “passive failure to do anything” but also on two occasions by “active mishandling”, leading to Mr McQueen being unable to work at all. In addition to the award for injury to feelings for victimisation (£15,000), the Tribunal ordered an uplift of 20% for breaches of the ACAS code of practice on disciplinary and grievance procedures (£3,000); and interest on the award at 8% (£4,680), totalling £22,680.

It is fairly common for victimisation claims to succeed even where principal claims fail (as here), and the ACAS uplift is an easy “win” for claimants. Employers can protect themselves by conducting prompt and thorough grievance and disciplinary investigations, in line with their policies and the ACAS Codes. Remember that there is the opportunity to remedy defects in the disciplinary or grievance procedure at appeal, if there were problems at the first stage.

If you would like to have a conversation about disability awareness training or other courses that can help you to ensure your workplace is inclusive for disabled employees, please contact the Lewis Silkin training team.

McQueen v General Optical Council – Employment Appeal Tribunal judgment available here.

McQueen v General Optical Council – Employment Tribunal judgment available here.