What Happens When An Employee’s Misconduct Is Linked To Their Neurodiversity?
Neurodiversity refers to a range of neurological differences such as autism, dyslexia and ADHD. Although employers are becoming increasingly aware of neurodiversity and the benefits of hiring a diverse workforce, a recent Employment Tribunal case has highlighted the difficulties that can arise when an employee commits misconduct linked to their neurodivergence.
What happened in the case?
The employee, who has autism and dyslexia, was a social worker who was dismissed for giving gifts to a child without her manager’s permission and for writing an inappropriate case note. The employee brought a claim for unfair dismissal and discrimination arising from disability, claiming that her autism prevented her from understanding her employer’s gift giving policy and from realising that her case note was inappropriate.
Before dismissing the employee, the employer tried to arrange an occupational health assessment for the employee to better understand how her conditions affected her behaviour. However, the employee refused to attend an assessment. As the employer had been unable to assess the risk of a similar incident happening again in the future, the Employment Tribunal ultimately decided that the employer’s response was reasonable and that the employee had not been unfairly dismissed or unlawfully discriminated against.
How should an employer manage misconduct that is linked to an employee’s neurodiversity?
Employers are often placed in a difficult situation when an employee behaves inappropriately in the workplace and then relies on their neurodivergence, or the medication that they are required to take, as an explanation. In this situation, it may still be appropriate to dismiss the employee, however, employers should take great care and consideration before taking this step.
What risks are there for employers?
Many neurodiverse conditions will satisfy the definition of a disability under the Equality Act 2010. Employers therefore have a legal obligation to not treat neurodivergent employees unfavourably because of something arising as a result of their disability unless the treatment is a proportionate means of achieving a legitimate aim. They are also prohibited from committing any acts of disability-related harassment, for example, by making offensive remarks about an individual’s condition.
What should an employer do in this situation?
The first thing an employer should do is try and understand how the employee’s condition or medication affects them, and how that might have influenced their conduct. Whilst an employer can do this by simply speaking to the individual, it is a good idea for an employer to arrange an occupational health assessment for the individual. This is likely to be invaluable as the occupational health professional can assess the individual’s condition, consider the risk of the individual repeating the behaviour, and assess whether any reasonable adjustments can be put in place to reduce the risk of the behaviour being repeated.
If reasonable adjustments are made, an employer should check-in with the employee regularly to ensure that the adjustments are still adequate and to see if they can provide any further support.
What action should an employer take?
When deciding what action to take, an employer should consider the situation carefully. If the employer believes that there is a strong likelihood that the employee will repeat the behaviour (even with reasonable adjustments in place), then dismissal may be appropriate.
Key factors for an employer to consider will include:
- How the employee’s condition or medication affects them
- The seriousness of the employee’s conduct
- The likelihood that the behaviour will be repeated
- Whether there are any reasonable adjustments that can be made to reduce the risk of the employee repeating the behaviour
- Whether it is appropriate to issue any sanctions