ADHD and Employment Law by Anna Bond and Ella Skinner

Created for the 2023 Global ADHD conference

Anna: Hi everyone, and welcome to this session on ADHD and Employment Law. My name is Anna Bond. My pronouns is she her and I’m joined by my colleague Ella Skinner and we’ll start with a quick round of introductions. So I’m a Managing Associate in the employment team at Lewis Silkin. I’m a discrimination lawyer focused on employment law and I have a particular interest in the issues which includes advising regularly on issues around discrimination including disability discrimination which is what will mainly be speaking about today.

Ella: I’m Ella Skinner. My pronouns are she her and I’m a trainee solicitor in the employment team and I work on a wide range of employment matters including discrimination issues. So to go through the agenda for today we’re going to start off by giving a bit of a summary of the relevant law particularly disability discrimination and then we’re going to talk about what requirements there are to disclose to the employer if you do have a disability then going to talk about some reasonable adjustments that can be put in place if you do have ADHD before just going on to touch on a bit of interesting case law that’s just come through.

Anna: Right, Ella. So starting then with a quick summary of the law which may be relevant in cases of ADHD in respect of employment. So all of the law we’re talking about today is contained within the equality act 2010 and the provision that we’re looking at in relation to ADHD is disability and I want to start by noting that we’re using this language because this is the language within the law so in the equality act there are a set of defined protected characteristics against which you can discriminate some against somebody if it’s on the basis of one of those protected characteristics and one of those is disability so without making any comment as to whether or not ADHD may constitute a disability sort of general terminology for the purposes of the law and the equality act that’s the kind of discrimination that we are dealing with. 

So the first thing to bear in mind when we’re thinking about whether ADHD can be or or is a disability for the purpose of the equality act is the definition of disability within the lawence that we’ve set that out on the screen here and there are a couple of requirements that a uh condition will have to meet before it can be classed as a disability under the Equality Act. The first one of those is that it has to be longterm and what that means is that it has lasted or is going to last at least 12 months so in the case of neurodiversities that is was going to be met then the remainder of the test is that it must be a physical or mental impairment and again noting that this is the language in the law and passing no comment whatsoever is whether or not the no adversity is is indeed a mental impairment which has an adverse substantial effect on someone’s ability to do their day-to-day activities so what I think this final limb says in in respect of ADHD is that clearly it’s something that can have an adverse effect on someone’s ability to do day-to-day activities and that can be substantial. First of all it’s not all going to be that the sort of consequences of radiation are not all going to be along those lines and secondly it’s going to vary on a case-by-case basis because somebody might have more pronounced. Somebody might have much less anounced and it may have a much lower impact on the day-to-day life so I suppose the takeaway here is that ADHD is absolutely capable of amounting to a disability for the purposes of the equality act and we’ve got case law that says it can be a disability but it’s not always going to be in each case and it’s going to come down to in each case on the actual impact that it has on someone’s life on someone’s ability to do their day-to-day activities. So if you are in the territory of the ADHD amounting into risibility there’s another limb from a legal perspective which in order to acquire all of the protections or some of the protections under the equality act there’s another limb you have to meet and that is that the employer in each case has to either know that the employee is disabled in this case if the employee has ADHD or the employer should reasonably have known that the employee is disabled again by virtue of having ADHD. So obviously one way to achieve that is simply to tell the employer and simply to communicate that to them ideally on the record it’s always good to get things in writing so you’ve got a clear record of when the employer had knowledge of something. Sometimes you can argue that even if you haven’t expressly disclosed to the employer that you have a particular condition that they should reasonably have known from an amalgamation of other facts like uh sickness absence and and references made generally speaking it’s going to be a lot more of a secure route forward if you’ve told and disclosed to the employer that you have a condition. Noting on that front that there are lots of reasons why somebody might not want to and why somebody might not want to disclose it particularly widely so on that front what you could always do is to disclose it on a sort of private basis to HR maybe HR and your line manager or the immediate people with whom you work who would need to know in order to support or in order to make particular reasonable adjustments which we’ll come on to talk about but with you know an explicit instruction you don’t want people knowing about it more widely. I would suggest if you want to have absolute certainty that your employer knows and therefore A can support better and B also will become subject to some of the duties which we come on to talk about then telling somebody even if a limited group of people is a safer way to go about that. So assuming that number one we have a condition which is going to meet that definition under the Equality Act of Disability and the employer has knowledge of it what are the different forms then of discrimination which that employer is going to be legally obligated not to subject to employee to. And there are all kinds of different kinds of discrimination which all sit within the equality act so I’ll zip through a couple of them now and then Ella and I are going to talk in a bit more detail about the ones which we think are probably going to be more relevant and more interesting um to you in terms of looking out for behaviors that are unlawful. 

So the first one on the slide here is direct discrimination. This pretty rarely applies in practice actually this is very sort of straightforward. I am discriminating against you treating you uh less favorably because you have a particular condition. So for instance I don’t like people who have X condition therefore I’m going to subject you to this treatment. That’s pretty rare in practice because people know that they shouldn’t be doing that. Indirect discrimination is where you have an apparently neutral practice. So, for instance, we have a practice that everybody has to arrive at the same time every day or everybody has to work in this particular way. That’s neutral because we apply it to everybody it doesn’t apply just to people with a particular characteristic be that ADHD or be that race or be that their gender whatever it might be we apply it to everybody the same but its impact on particular groups of people is different because of a protective characteristics in this case ADHD um harassment um Ella is going to come on to talk about in a bit more detail but this is any conduct which essentially creates a hostile environment for somebody based on that protect characteristic. And one of the main takeaways I’d like to get across on this point is that you don’t have to have the protect characteristic for something to constitute harassment. So if somebody makes an a really inappropriate joke for example about ADHD whether or not you yourself have ADHD you can still be offended by that and that can still constitute harassment which is a kind of discrimination. The fourth kind of um discrimination we’ve got on the slide here is a failure to make reasonable adjustments and this is something we’re going to talk about in some detail but just very briefly if the employer knows that an employee has a disability they come under a duty to make reasonable adjustments to their working conditions and this can be all kinds of things from working hours. The way they work the kind of work they do additional support that they have. We’ll come on to talk about that in a bit more detail and then the final one here is discrimination because of something arising from a disability. So this is not I’m discriminating against somebody because they have particular condition that condition causes particular behaviors symptoms or whatever it might be that is something arising from the disability and then if someone is discriminated against on the basis of that behavior which has arisen from the disability that can also constitute discrimination. So I think we’re going to talk now a little bit about harassment. 

Ella: Yes. So just to go through some of the elements of harassment. So this consists of any unwanted conduct related to a protected characteristic including disability in this case ADHD which has the purpose or effect of violating someone’s dignity or creating an intimidating hostile degrading humiliating or offensive environment. And this is unfortunately um an illegal behavior that we do see quite a lot in employment law. A couple of things to note about harassment is that it doesn’t have to be a repeated incident a one-off incident can amount to harassment. Also the victim of any harassment doesn’t need to have made the perpetrator aware that the conduct was unwanted and as Anna said earlier it’s we just wanted to reiterate that you know this unwanted conduct doesn’t have to be made towards someone with a protected characteristic it just has to be related to a protected characteristic. And so the sort of conduct that we see is offensive jokes or offhand remarks particularly those which are dismissing someone’s uh diagnosis. Such as for example if someone said you know everyone’s a bit ADHD these days or you know you don’t really have a disability you just can’t concentrate. Those would could amount to harassment. We also wanted to point out that it doesn’t matter if a person didn’t intend to harass someone. So these are kind of the common things you hear people say it was only a joke classically. Tt was just a bit of banter it doesn’t matter if their intention wasn’t to harrass someone it matters that that was the effect that it had.

Anna: Thanks very much, Ella. So the next point that we wanted to deep dive a little bit more under the Equality Act. Another form of discrimination is an employer’s failure to make a reasonable adjustment. So when does this arise? When does this duty on employers to make these adjustments arise essentially when an employee is placed at a substantial disadvantage because of either a physical feature at the workplace a policy or practice that their employer is operating or a lack of or auxiliary a so it can be something which is happening something which impacts differently on somebody because of their disability or it can be an absence of something which if the employer provided it would help uh address the substantial disadvantage that the employee is at because of that disability. So what is the duty then is to take any reasonable steps to remove any disadvantage caused by the disability on one point that I really want to get um clearly across is the adjustments have to be reasonable from the employers perspective as well so there is this duty on employeers to do more in the instance where an employee has a disability they are then required to go above and beyond and to address any disadvantage the employee might be suffering as a result of that. But that always has to be reasonable and I’ll come now to think a little bit about how how you go about establishing what is reasonable because this is really the million dollar question and um while it would be great to say you know anything that might help is going to be a legal obligation on an employer to provide for a disabled employee. Actually there are some factors that we need to take in mind when we’re thinking about whether or not it would be reasonable. 

So the first one here um which you know kind of makes sense the extent to which the adjustment will be effective so if it is going to be you know make an absolute world of difference to somebody it’s much much more likely that an employer is going to be found to be under a legal obligation to provide that for the employee. Likewise how practical is it to make the adjustment you know if somebody’s asking for something which actually in in practical terms is going to be totally unworkable even if theoretically it might be really helpful that is going to be something that will be taken into account in establishing whether or not it is reasonable. And the next two are ones that really relate to the kind of employer that somebody might be working for. So the first one here is the cost of the business and the availability of other funding so one point I think that’s really important to bear in mind because sometimes employers do seek to rely just on this is that an employer saying that we’d love to make this reasonable adjustment but unfortunately, it has a cost to it and we aren’t able to pay anything we aren’t able to you know um devote any resources financially towards that. That is not necessarily going to be a good reason for the employer not to make an adjustment so cost is something that will be borne in mind if if the cost of something is going to be really really high then it may mean that it’s not a reasonable adjustment but in and of itself that isn’t always going to work as a reason not to do something. So what that means is that if you think there is something which you would need made as a reasonable adjustment in respect of your employment and your employer says we are not willing to consider anything that carries any kind of cost that is probably not going to be reasonable from the employer perspective. Likewise the availability of other funding so if there are alternate means through which you can get some support so for example if you can get noise cancelling headphones through another route that might be something else that would be factored in in deciding whether an employee is behaving reasonably and not providing something. And then finally the nature and size of the business. So if you are working for a massive multinational with huge resources tons and tons of of sort of financial resources and knowledge resources about you know things that can be done to support people and really good structure set up in order to do that and they still refuse to make any kind of adjustment that’s less likely to be found to be reasonable than if you are working for a very very small organization with very limited capacity, very limited resources; financial or otherwise. So those are some things that in general are taken into account in deciding whether something might be reasonable Ella is now going to talk about how this might relate specifically to a ADHD and reasonable adjustments. 

Ella: So there are hundreds if not thousands of potential adjustments that could be put in place by an employer but just to give you an idea of some of them. So for example in an open plant office it can be quite noisy and distracting so a potential adjustment could be an employer providing a quieter office with a door that someone could shut or a smaller room with less people or just even considering the location of someone’s desk and having it you know away from the coffee area or away from a busy corridor so it reduces that distraction. Similarly with hot desking this can also cause some issues and often favors those who can get in earlier and get the best desks. So again, a potential adjustment could be looking into whether someone with ADHD could reserve a specific desk that’s one of you know the good ones in a certain area um or whether they could you know work from home a bit more. That could also be a potentially reasonable adjustment. And again looking at noises Anna has already said the provision of noise cancelling headphones if other solutions maybe weren’t workable. There’s also arrival timelines and meeting timelines can be impacted if someone does have ADHD. So start a starting point would be for an employer to just to have a discussion about determining if those arrival timelines and meeting timelines are business critical and if they’re not looking at flexible arrival times or hours or instead of having set tasks done by a specific in specific hours saying you know these are the set tasks and you can complete them in your own time um and then if they are critical um look at if they could be made less critical or then looking at what tools are available such as calendar management or dedicated reminder systems. 

There’s also if someone’s having a lot of unscheduled disturbances and finding that really difficult for allowing them to concentrate whether someone would be allowed to block time out in their calendar where they don’t have any disturbances or whether they can turn their notifications off um so that they can have that quiet time to focus. There’s also the perceived stigma of needing adjustments and if colleagues are you know undermining or not accommodating those adjustments that when is when a reasonable adjustment of workplace training could come in to you know create a more empathetic and understanding environment in the workplace to those who do have ADHD and require some reasonable adjustments. And then finally another thing an employer can do is actually you know look at using positive ADHD traits such as hyperfocus or being able to come up with more creative solutions and actually working those in to their organization or the role and seeing how you know those can be utilized and like using people for their strengths. 

Anna: Thanks, Ella. I love that. Yeah, I think it’s something unfortunately that we’re often sort of um coming up against in respect of neurodiversities in general and ADHD specifically is a lack of understanding, a lack of awareness as to how something might actually address um you know a difficulty that somebody was having as a result of ADHD and how the adjustment might help address that. And so one thing I would say is it’s Pro it’s worth talking that through and being really clear about why an adjustment is going to help. Again coming back to those four factors that we looked at in terms of how something will be assessed with reasonability looking at how success it’s going to be how impactful it’s going to be you know someone explaining this is why this will help ameliorate my experience of whatever it is that’s potentially going to be very helpful. Yeah so just generally round off on reasonable adjustments my main takeaways I would say it’s it’s not that an employee has to make any adjustment whatsoever. It does have to be reasonable but it they also do have to take into account how much that could support an employee and it won’t be sufficient just to say if there’s a cost attached then we are willing to think about it. And we’re just going to finish off by sipping through a couple of the recent cases that we found interesting to relate to ADHD. 

Ella: Thanks, Anna.So the first one is Pipe and Coventry University. So this one was where there was a university lecturer who suffered from ADHD and he was repeatedly passed over for promotion because he did not have a PhD. 

Anna: Yes, so it’s I think it’s really interesting point this one around whether and this is what I was saying earlier about having a practice which is apparently neutral. It doesn’t apply just to people with a particular characteristic and in this case that practice was we require you to have a PhD in order to get XYZ position. The tribunal hasn’t yet come to a decision on this but they’re still pondering this question so we’ll keep a close eye on this one but I think it’s an interesting question whether a requirement to have the PHD could be discriminatory against people including people with ADHD potentially who would find it more difficult for whatever reason to have got PhD but may still be completely qualified and completely um excellent at the job. And the other point from this case which I actually find the most interesting and the most exciting is that the tribunal found that there was no requirement for the employee to have an official diagnosis of ADHD in order for the employer to know that they were a disabled person and to come like under all of those duties to make reasonable adjustments and not to discriminate in other ways against the employee. And I obviously think that’s of particular interest when it comes to ADHD because as I’m sure everyone listening to this is well aware there are increasingly challenges for people to get diagnosis the time waiting is completely um completely unacceptable as they that at the moment so there may be people who know that they have ADHD but haven’t yet got an official diagnosis so I think it’s useful to know that the tribunals have found that that’s not necessarily something an employee has to have in order to say that they are a disabled person.

Ella: Great! Thanks, Anna. And so the next case was Talbot and Somerset County Council. In this case, there was a teaching assistant at school with ADHD and she breached the school’s code of conduct conduct and the tribunal found that she wasn’t discriminated against um even though she was subject to a disciplinary process because of some adjustments that was made to that process and Anna will talk through it a little bit about why that’s interesting. 

Anna: So in terms of the adjustment that was made to the disciplinary process effectively the school said this is misconduct we do need to take a disciplinary approach to this but we’re not going to go all the way to our formal process we’re going to do a slightly less serious approach to this and we’re going to do an informal disciplinary which is a less severe sanction under the um the way it worked at that school in terms of their processes and the tribunal found that that was a reasonable adjustment in the circumstances I.E it was appropriate that there was a disciplinary um but it was also appropriate that there was an adjustment made to that. And I think the other thing to bear in mind here is that the individual’s conduct I think clearly was you know merited a disciplinary process in particular the management kept telling her that she wasn’t to talk about the process going on more generally. She wasn’t to contact other staff about it she went against that instruction and in fact she even went so far as to turn up at the homes of one of the other members of Staff in order to talk to them about it. So it was some fairly extreme behavior which did require a disciplinary process. 

Ella: And finally that brings us on to Callaghan and i-Smart Consumer Services. And in this case, an employee with ADHD was performing really well and she’s performing so well in her role that her employer decided to promote her to a different team but in doing so they just called her up suddenly one day and told her this. And she found this very distressing and actually went off on sick leave because of it and yeah Anna we’ll talk a bit more about that. 

Anna: Yeah. So she went up leave and then it eventually ended up unfortunately in her leaving employment entirely which I think is such a sad consequence of what should have been such a positive situation um and really just speaks to what I was saying earlier about if there was a bit of education and a bit more understanding from the employer about the way that a sudden change was likely to land with this employee in particular then hopefully it could all have gone very very differently so it’s a real shame. And perhaps unsurprisingly the employer found that the sorry the tribunal found that the employer had behaved um totally unreasonably in springing this decision on the employee and in really mismanaging it in terms of communication in terms of supporting her. And they also specifically found that it would have been a reasonable adjustment based on her ADHD to give her a stage transfer so to sort of gently introduce the idea to take her through that. To offer her additional support in terms of getting used to that change and then hopefully you know it would have landed as it was meant to as a positive thing and they found that to be a reasonable adjustment in respect of her ADHD. So while it’s really difficult to give you a finite list of the things that might be reasonable adjustments or might be discrimination behavior. Hopefully those cases have given you just a little taster of the kinds of cases we’re seeing coming through the courts. And I also think it’s interesting to note that um these are all pretty recent cases so perhaps unsurprisingly we are seeing an increasing number of cases that refer to ADHD specifically coming through the tribunals. 

That was everything we wanted to talk about today other than to say thank you so much for joining us we hope it’s been interesting. My details are up on the screen here. Please feel free to drop me a line if you think you might need support or if there’s anything else you would like to ask us and we’ll be very happy to help. Thanks for your time!

Ella: Thank you!

ADHD UK are not in a position to provide legal advice or support. To support you we instead direct you to specialised legal and information resources that could be useful to you.

• Disability Rights UK
• Disability Law Service
• Mind, ‘Disability Discrimination’
• Disability Justice Project
• ACAS, ‘What disability means by law: Definition of disability’ [Includes a section on ‘Neurodiversity including ADHD, autism, dyslexia and dyspraxia’]
• GMB Union, ‘The Law and Neurodiversity at Work’
• Prospect, ‘What does the law say about neurodiversity equality at work?
• BPP University Law School (Pro Bono employment helpline staffed by students)