Neurodiverse employee’s unacceptable behaviour is not protected by Equality legislation

A recent case has shown that misconduct by an employee that is not a consequence of their disability will not be protected under legislation.  

In the case, a tribunal considered whether an employer’s treatment of a neurodiverse employee amounted to discrimination arising from disability. 

The central question was had the employer treated the employee unfavourably because of something arising from his disability and in a way that could not be justified as a “proportionate means of achieving a legitimate aim?”

The employee, Mr McQueen worked as a registration officer at the General Optical Council (GOC). He was disabled with dyslexia, Asperger’s Syndrome symptoms, neurodiverse traits and hearing loss in one ear. Adjustments were put in place by the GOC including written instructions and physical adjustments.  

The employer recognised that Mr McQueen’s conditions caused difficulties interacting in the workplace. However, the employer disagreed that his “meltdowns” of rude, aggressive and inappropriate behaviour towards colleagues arose from his disabilities.

The GOC took disciplinary action regarding the employee’s conduct.  

The employee raised a grievance and then brought a tribunal claim arguing that disciplinary action showed he had been treated less favourably because of something arising as a consequence of his disability.  

Tribunal Findings

The Tribunal found that the “meltdowns” arose not because of his disabilities but because he had a short temper and resented being told what to do. 

The tribunal disagreed with Mr McQueen’s claim that he needed to stand up when speaking to colleagues.

The tribunal found no discriminatory conduct by the employer. It stated that Mr McQueen had become impossible to manage and he refused to accept his behaviour was unacceptable.

Despite successfully defending the discrimination claim GOC was ordered to pay the employee £15,000 in compensation for significant delays in processing his grievance.

Learning for Employers

Process grievances in a timely manner and in line with your internal procedures and the ACAS code of practice. 

Be aware of and support the needs of your neurodiverse employees (who make up 15-20% of the population).

Seek expert medical advice on how to best support neurodiverse employees as no two conditions will be the same.

Build an inclusive working environment.

Be aware of how conditions will impact observable behaviours (for example, individuals with ADHD feel emotions intensely and may find it difficult not to give emotional responses. Individuals with dyslexia may have difficulties with personal organisation, time management, and prioritisation).

Support and Adjustments for Neurodiverse Employees

• Ensure the workstation is in a quiet area.
• Provide noise-cancelling headphones to reduce distractions, overstimulation and sensory overloads 
• Provide clear, specific instructions for all tasks.
• Follow up verbal instructions in writing to enable individuals to absorb them in their own time and refer to them as needed.
• Assign a buddy to help the employee build awareness of social cues and appropriate social communications.
• Agree on earlier or later start/finish times to help avoid commuting at peak times where individuals may find this a challenge or a sensory overload. Amended times also help to mitigate sleep problems and difficulties with the personal organisation. 

Gavin Parrott, Employment Law and HR Advisor