Changing the narrative on neurodiversity: smoothing out the bumps in the road

Libby Hubbard looks at a recent Employment Appeal Tribunal case that considered whether a staff member’s behaviour and his disability were linked.

In a recent blog post, I wrote about the need for workplaces to create a culture which is inclusive of neurodivergent staff. When embarking on an inclusivity journey, it is not without bumps in the road as the General Optical Council (GOC) found in a recent Employment Appeal Tribunal (EAT) decision.

That said, without the bumps, we rarely make progress and discover practical solutions to avoid said bumps. But enough of my rather trite (but maybe slightly helpful) pop psychology, let’s look at the case and its learning points.

In McQueen v General Optical Council, the GOC was trying to manage behaviour which it considered to be challenging but which Mr McQueen attributed to his disabilities. The EAT looked at whether Mr McQueen’s behaviour was something arising as a consequence of his disabilities under S15 of the Equality Act 2010 or whether his behaviour was not connected to any disability.

Case details

Mr McQueen had dyslexia, some symptoms of Asperger’s syndrome and left-sided hearing loss. These conditions were accepted as disabilities and an occupational health adviser and other medical professionals had been consulted. It was accepted that in situations of stress and anxiety, Mr McQueen would raise his voice and adopt an aggressive manner with inappropriate speech and tone.

Various adjustments were made; any instructions which requested that he change what he was doing or how he was doing it needed to be put in writing. In addition, he was able to record conversations which meant that he could go back and listen to them later to ensure he understood what was being asked of him.

Two particular incidents were highlighted, both involving Mr McQueen’s senior colleague. In April 2015, he challenged an instruction. The instruction was a reasonable one, but Mr McQueen responded with aggressive gestures and was rude. The second incident occurred in April 2016 when the same manager requested Mr McQueen pass a backlog of work to some colleagues. Again, there was a confrontation. Further difficulties followed. These included a disciplinary measure for failing to follow instructions and handing out wrong advice and an inability to accept the marking allocated to him during an appraisal. Various claims were made and grievances were lodged. Mr McQueen left GOC’s employment and shortly before that, in February 2019, he raised his second claim at the tribunal. He claimed, amidst various other claims, that he had been subjected to unfavourable treatment because of something arising as a consequence of a disability under S15 of the Equality Act 2010.

Were his behaviour and his disability linked?

This is essentially the question that needs to be asked in S15 cases like this one. There is a broad causation test with this; the link between the two can be relatively slight.

The tribunal found that there was no such link. Mr McQueen appealed. The EAT rejected the appeal and upheld the tribunal’s decision. The tribunal decided that Mr McQueen’s insistence that he stands up to speak was simply a habit which was not related to his disabilities. The tribunal found that aggressive responses to other members of staff could in some situations be linked to his Asperger’s diagnosis. However, having carefully examined the various incidents that Mr McQueen complained of, it decided that his disabilities played no part in his aggressive conduct and that these were a consequence of him having a short temper and resenting being told what to do.

Learning points

• Although the tribunal found that there was no link between Mr McQueen’s challenging behaviour and his disabilities, this should not be taken as establishing a pattern for all people with Mr McQueen’s disabilities:
  • this decision was very fact-specific – and we can see how another tribunal might have reached a different conclusion on the facts;
  • neurodivergent conditions affect different people in different ways, so making assumptions can be fraught with risk.
• Education is key – make sure staff (from all levels of the organisation) understand the term neurodiversity and what it can include and what that may look like in the workplace.
• As highlighted above, not all staff who are neurodivergent will have the same needs or behaviours. Neurodiversity is an umbrella term – a dyslexic employee may have very different needs to someone with ADHD and yet they will both be neurodiverse. Be prepared to talk to the employee about their needs and, if necessary, to do a formal assessment to find out what those needs are.
• It is not unusual for staff who are neurodivergent to have more than one neurodivergent condition.
• Not all staff who are neurodivergent will necessarily be disabled – it will depend on how their condition impacts their day-to-day activities. That said, it may be more appropriate to focus on making reasonable adjustments for staff who express difficulties rather than necessarily focusing on whether someone is disabled within the meaning of the Equality Act 2010, as many adjustments can be made relatively easily and cheaply. The key is what is reasonable. Once requests move beyond or to the borderline of what is reasonable, you may want to get specialist advice about whether a particular condition does amount to a disability by finding out more about the condition and the impact it has.
• Offer assistance and additional training and support for staff who line manage neurodivergent colleagues. The tribunal and the EAT took the view that Mr McQueen’s line manager wasn’t particularly sympathetic towards him and his disabilities. She appeared to show a lack of understanding of his various conditions. The ruling still went in the employer’s favour, but it could have easily swung the other way. Had the manager had better training and support in handling situations involving Mr McQueen, the incidents might not have occurred or been so extreme.
• Whilst education and understanding are key, there may still be a time when boundaries and difficult decisions must be made. The GOC were willing to provide reasonable adjustments and assist Mr McQueen until the adjustments he required became in their eyes unreasonable and unrelated to his neurodiversity. Where that tipping point is will be different in each situation. Again, an understanding of the nature of an employee’s neurodiversity will be key to finding out whether the adjustments are reasonable as are occupational health and other advisers. You may need to weigh that against the harm it is causing other members of staff and how their needs are met so the working environment is not hostile and dominated by one member of staff and their needs.

As this article demonstrates, this was a complex case and rested on its facts as do so many similar cases in the workplace. It was a lucky result for the GOC and could have been decided differently given the complexity of Mr McQueen’s disabilities and the way he was treated.

Libby Hubbard is a professional support lawyer at Anthony Collins Solicitors.