In McQueen v General Optical Council (GOC), the Employment Appeal Tribunal (EAT) considered whether an employer’s treatment of a neurodiverse employee amounted to discrimination arising from disability under section 15 of the Equality Act 2010 (i.e. whether the employer had treated the employee unfavourably “because of something arising in consequence” of his disability, and in a way which could not be justified as a proportionate means of achieving a legitimate aim).
Below, we look at the EAT’s judgment in this case and consider how employers can support their neurodiverse employees.
Mr McQueen was employed by the GOC as a registration officer. He was disabled (with dyslexia, symptoms of Asperger’s Syndrome, ‘neurodiverse traits’ and left sided hearing loss) and the GOC accepted that his conditions caused him some difficulties interacting in the workplace.
It was agreed that Mr McQueen needed written instructions to back up verbal communications, as well as some physical adjustments. The parties disagreed, however, on how Mr McQueen’s disabilities manifested themselves at work. In particular, there was disagreement around whether the rude, inappropriate and aggressive behaviour Mr McQueen had shown in certain situations of conflict with colleagues (described as ‘meltdowns’) arose from his disabilities.
Following disciplinary action and a protracted grievance process, Mr McQueen brought various claims in the employment tribunal, including that he has been treated unfavourably because of something arising in consequence of his disability.
Employment tribunal decision
Based on the specific facts of this case (including multiple medical reports), the tribunal concluded that Mr McQueen’s conduct, including his ‘meltdowns’, arose not because of his dyslexia or Asperger's Syndrome (his disabilities) but rather because he had a short temper and resented being told what to do. The tribunal disagreed with Mr McQueen’s assertion that there was a need, arising from his disabilities, “not to approach him in a seemingly confrontational manner”, and that he needed to stand up when speaking to colleagues.
The tribunal found no discriminatory conduct on the part of the GOC; rather, the tribunal concluded that Mr McQueen had “become wholly impossible to manage”, and that he had refused, or been unable, to “accept that his behaviour had been unacceptable”. The tribunal therefore concluded that it had become “impossible” for the GOC to retain Mr McQueen in their employment.
Appeal to the EAT
Mr McQueen appealed to the EAT, asserting that the tribunal had applied too strict a test of causation when considering the effect of his disabilities. He argued that, to succeed with a section 15 claim, the disability does not necessarily need to be the principal reason for the ‘something’ that arises in consequence of it. (In his view, “the disability needs only to have a significant or more than trivial influence on the ‘something’".)
The EAT criticised the tribunal’s judgment in various ways – describing it, for example, as “curiously structured and drafted in an unorthodox manner” and noting that the tribunal had used “unfortunate language” and not “addressed the issues in a systematic way”. However, the EAT ultimately agreed with the tribunal that Mr McQueen had not been discriminated against. The EAT found that the employment tribunal had correctly applied the law and dismissed Mr McQueen’s appeal.
Watch out for victimisation claims
While the outcome of the section 15 claim in this case provides some comfort for employers, it is worth noting that the tribunal accepted Mr McQueen’s argument that the GOC’s significant delay in handling his grievance amounted to victimisation and awarded him £15,000 in compensation for injury to feelings. The tribunal also added a 20% uplift to this award due to the GOC’s failure to comply with the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance Procedures, as well as interest on the award. This is therefore a cautionary tale for employers about the need to comply with the ACAS Code (as well as internal company policies) and to address any employee grievances promptly, as victimisation claims can succeed even where an employee’s other claims fail.
Supporting neurodiverse employees
Approximately 15 to 20% of the population are thought to have some form of neurodiversity, so it is vital that employers develop their understanding in this area to support their neurodiverse community. Employers should remember too that cases involving neurodiverse employees are often highly fact-specific and rely heavily on medical evidence, so it is possible that had Mr McQueen’s circumstances been slightly different, or had his case been argued in another way, the tribunal and/or the EAT may have reached different conclusions.
Fostering an inclusive environment at work can reap significant benefits (for example with respect to recruitment, retention and staff productivity), and can also help minimise the risk of legal claims. The type of support required will of course vary depending on the individual employee and how their neurodiverse condition affects them at work. For example: some people with Attention deficit hyperactivity disorder (ADHD) feel emotions more intensely and may find it more difficult to refocus away from an emotional response; it is fairly common for individuals with dyslexia to have difficulty with personal organisation, time management and prioritising tasks; and many autistic individuals find it hard to read social cues or interpret facial expressions, gestures and tone of voice.
Some examples of adjustments that are often considered helpful in the work environment include:
- ensuring that the employee’s workstation is located in a quiet area of your premises, and/or providing noise cancelling headphones to help avoid distractions, overstimulation or sensory overload (which may be helpful for certain individuals with autism or Asperger’s, dyslexia, or ADHD);
- providing clear and specific instructions for all tasks, with any verbal instructions being confirmed in writing to allow the employee to digest them properly and refer back to them when needed (which can help some employees with ADHD, autism or Asperger’s);
- matching the employee up with a ‘buddy’ who can help them to build their awareness of social cues and appropriate social communications in the work environment (which may be useful for some employees with autism or Asperger’s); and
- agreeing earlier or later start and finish times to allow the employee to avoid commuting during rush hour if they find this challenging or likely to lead to sensory overload (which may be relevant for employees with Asperger’s or autism), or to mitigate the effect of problems with sleep (which may occur in some individuals with ADHD).
For further information about the legal protection available for neurodiverse employees, reasonable adjustments and benefits of inclusivity for employers, see here.
How we can help
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on supporting neurodiverse members of staff. Make UK can provide a collection of micro-videos exploring particular neurodiverse conditions and how they can affect individuals at work.
We can also provide more detailed training to staff, and specifically managers, to increase awareness about neurodiversity. Make UK can also support you by designing an EDI+ strategy for your workplace and working with you to formulate a plan for staff training and development to build awareness of EDI+ (with training modules about neurodiversity and for neurodiverse employees). Please contact [email protected] for further information or click here.
If you are not a Make UK subscriber, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].