One of our employees has told us he has ADHD but this has not been diagnosed by a medical professional. What should we do?
If an employee has told you that they have a neurodiverse condition, such as Attention Deficit Hyperactivity Disorder (ADHD), Autism and/or Dyslexia, it is advisable to treat this information seriously and try to find out more from the individual about how their condition impacts them and how you can provide support.
From a legal perspective, it is possible that the individual’s condition may amount to a disability under the Equality Act 2010 (regardless of the fact that they do yet have a diagnosis) and, if so, you would have a duty to make reasonable adjustments to ensure that the individual is not placed at a disadvantage due to their condition. Aside from the legal implications, it is good practice from both HR and employee relations perspectives to try to understand how you can support your employee to manage their condition and achieve their potential at work.
While the absence of a formal diagnosis from a medical professional may make it harder for you as an employer to understand the employee’s condition, there are steps you can take to try to find out more. Depending on the circumstances, it may be appropriate to ask the individual to provide a letter from their doctor explaining the symptoms the individual is experiencing, so that you can better understand how you can support them in the workplace. Note, however, that it is unlikely that a general practitioner (GP) will be able to provide a formal diagnosis of a neurodiverse condition, as this is normally undertaken by a specialist (and there can be significant delays on the NHS to receive these kinds of diagnoses). Some employers therefore opt to ask the employee to meet with an occupational health practitioner, who can help the employer to better understand the individual’s condition.
In any event, it is advisable to meet with the employee – to discuss how their condition impacts their daily work, and how you can best to support them – and you should keep the situation under close review by meeting with them regularly.
If you are a Make UK subscriber, you can speak with your regular adviser and/or access further information about disability discrimination in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
How long should we give employees to appeal against a disciplinary decision?
Acas guidance suggests that employers set a timescale for lodging a disciplinary appeal and indicates that five working days is usually long enough. However, the Acas Code itself does not specify a time limit.
If an employee submits an appeal later than the deadline stated in your disciplinary procedure and has a good reason for their appeal being late, it is usually best practice to hear the appeal unless you have a good reason not to.
If you are a Make UK subscriber, you can speak with your regular adviser about disciplinary, grievance and performance related issues and/or access further information in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
One of our employees is a trans woman. She wishes to use the female toilets at work, but other staff members have raised concerns about this. What should we do?
The general position in relation to toilet access is that trans employees should be free to use whichever facilities they feel are appropriate for their gender identity. However, issues relating to gender identity can present challenges for HR, especially where other employees raise concerns, for example due to gender critical beliefs.
From an employer’s perspective, it is important to communicate your policy and approach to trans related matters appropriately and clearly. Where differences of opinion arise between employees, you will need to handle the situation sensitively and a process of discussion, explanation of expectations and training will be needed, with due respect for confidentiality for all concerned. As regards the issue of toilet provision at work, note that trans employees should not be instructed to use the disabled toilets, nor should they be instructed to use facilities that do not suit them. If possible, providing a unisex facility (i.e. a self-contained lockable cubicle with toilet, basin, bin, mirror, ceiling to floor walls) can be helpful to offer employees more choice and help to avoid clashes of ‘protected characteristics’ as defined in the equality legislation.
Case law on the rights of trans employees and also those with gender critical beliefs under equality law is continuing to evolve and we will of course keep our members up-to-date on key developments. For example, it will be interesting to see the outcomes of two cases in the EAT this year (Bailey v Stonewall and Randall v Trent College). The definition of sex in the Equality Act has also come under scrutiny during the general election campaign as the Conservative Party has committed in its manifesto to clarifying that the protected characteristic of sex in the Equality Act means biological sex, with the aim of protecting single sex spaces and the provision of single sex services.
Given the complexities of this area of law, we recommend that HR and managers attend detailed training on how to support trans employees in the workplace. We also recommend general awareness training for your wider workforce. Make UK can provide both of these types of training - please contact us for further information.
If you are a Make UK subscriber, you can also speak with your regular adviser and/or access further information in our HRL Resources. If you are not a Make UK subscriber, please click here for information on how we can help your business.
Should a notetaker be present at disciplinary, grievance and appeal hearings?
Yes, it is usually helpful for a notetaker (e.g. someone from HR) to be present at these types of hearings to take minutes and it is good practice for attendees to be given a copy of the minutes after the meeting. Note, however, that in our experience it is generally better not to provide for the minutes to be "agreed" by the employee, as this can lead to disputes. Instead, you could ask the employee to let you know if they have any comments on the minutes and, if any comments are in dispute, you can attach a note of the employee’s points to the minutes.
If you are a Make UK subscriber, you can speak with your regular adviser and/or access further guidance on conducting disciplinary and appeal meetings in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.
Two of our employees have a significant personality clash and the situation is reaching boiling point. We are a small employer and need to ask one of the employees to leave. Both employees have more than two years’ service so would be able to claim unfair dismissal. How can we handle this lawfully?
To avoid an unfair dismissal claim, an employer in this situation will usually look to rely on “some other substantial reason” (SOSR) as the potentially fair reason for dismissal. When assessing whether a dismissal was fair, an employment tribunal would need to be satisfied that the personality clash between the two employees was causing substantial disruption to your business such that the situation really had become untenable. You would also need to show that you had carefully considered alternatives to dismissal (for example, redeploying one or both of the employees to roles where they would not have to work together), but that no such alternative was feasible.
The issue of which of the two employees should be dismissed will depend very much on the specific facts. We would therefore recommend that you take independent legal advice on your situation. Factors such as whether there are any discrimination risks associated with dismissing one individual rather than the other, whether the personality of either of the individuals is causing issues in the organisation more broadly, and the precise impact of the situation on your specific business, will be relevant in your decision making.
If you are a Make UK subscriber, you can speak with your regular adviser and/or access further guidance on termination of employment in our HRL Resources. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.