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Neurodiversity ET claims

At the inaugural #Neurodiversity #HR #Masterclass last week, Prof. Amanda Kirby and I spoke about the importance of the #EmploymentLaw context relating to neurodiversity.

According to Fox & Partners, there was a #EmploymentTribunal (ET) claims relating to neurodiversity rose by 1/3rd in 2021. And we know from our conversations with #EmploymentLawyers, #EmploymentBarristers and #EmploymentTribunalJudges that this increase is continuing, and we are seeing an increase in enquiries in training for these groups too, which is great.


All ET cases are interesting and important, and they certainly help to focus the mind on why it is necessary to seek professional help with #EmployeeRelations cases that may have a neurodiversity consideration.


At Do-IT Solutions we can help you to navigate these cases with our significant neurodiversity and HR expertise, so please don't hesitate to get in touch.

One case we discussed was Morgan v Buckinghamshire Council. Morgan was a supervising social worker in the fostering team.


She was dismissed for giving gifts to a child without permission from her manager and because of an inappropriate case note she had written.


The claimant, who has autism, dyslexia and other conditions, brought a claim for unfair dismissal and discrimination arising from disability, 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.


The tribunal said that it was inclined to accept that the conduct for which the claimant was dismissed resulted from her disabilities.


However, in the circumstances, and taking into account the fact that the claimant declined an occupational health assessment, the ET determined that her dismissal was fair and "within the range of reasonable responses and a proportionate means of achieving a legitimate aim."


Having no occupational health assessment meant that her employer had no advice on whether she was likely to repeat similar behaviour, nor could it assess that risk.

The claimant appealed but the Employment Appeal Tribunal dismissed the appeal.


Separately, however, the claimant succeeded in a claim for disability-related harassment. In the letter explaining the outcome of her appeal against dismissal, the appeal officer had stated 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 accepted that the claimant reasonably took this as a suggestion that she had been deceitful, when she had in fact simply learned behaviours which led to her #masking her #autism, and that she reasonably felt her dignity to have been violated.

This is such an interesting and important case. On the face of it, you might instantly think that it was reasonable to dismiss Morgan for her actions given the responsibility of her role. But, the Employment Tribunal case highlights the importance of ensuring that every consideration is made to the impact of the individual's neurodiverse condition on them in their role.


The comments regarding masking, in my opinion, demonstrated the employer's lack of true understanding of her neurodivergence and I wonder whether their occupational health adviser had given them any information and/or advice in this regard.


Do-IT Solutions , can advise that you ask very specific questions of your occupational health provider to help you to support neurodivergent colleagues, and ensure that your practices are neuroinclusive. Do get in touch if you need any support with OH referrals.


The brilliant Jen Kingsmill at Lewis Silkin has written an excellent article on this case, including advice for employers. You can find the article, here.


We will be sharing some more interesting cases and would be happy to speak to you if you need advice or guidance on any cases.

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