Sighing at employee with ADHD was disability discrimination

Sighing at employee with ADHD was disability discrimination

An employee has won his disability discrimination claims after a manager repeatedly sighed at him and made exaggerated exhales because of his poor timekeeping and working patterns. Why were the employee’s claims successful?

ADHD diagnosis

Mr Watson (W) was employed as a software engineer for Roke Manor Research Ltd (RMR). He was subsequently diagnosed as having ADHD, and his symptoms included having difficulty focusing, being easily distracted and having poor timekeeping. Following his diagnosis, W’s project lead (T) questioned him several times, both on a one-to-one basis and in front of other team members, about his working hours and patterns and the fact he spent a lot of time away from his project desk. T also expressed non-verbal frustrations such as repeatedly sighing and making “exaggerated exhales”. When W explained to T that his comments and behaviours were making him feel anxious and stressed, T stated that the comments had been designed to put pressure on W. After a subsequent period of prolonged absence from work for illness, W was dismissed. He brought claims for unfair dismissal, discrimination arising from disability, disability-related harassment and a failure to make reasonable adjustments.

Successful discrimination claims

Although the tribunal ruled that W’s dismissal was fair, he succeeded in his disability discrimination claims. T’s sighs, gestures and other expressions of frustration, such as calling W a “net detriment”, were disability-related harassment. In addition, those expressions of frustration arose from W’s poor timekeeping and working patterns and those behaviours themselves arose from W’s ADHD and so that was discrimination arising from disability. Finally, RMR had failed in its duty to make reasonable adjustments following W’s ADHD diagnosis. W had had multiple meetings with management about his ADHD and had provided them with ADHD awareness material and suggested adjustments, but RMR had repeatedly failed to act. These failures included not discounting disability-related absences under its sickness absence policy and not providing W with support.

Neurodiversity in the workplace

T was frustrated by W’s behaviours because he didn’t fully understand W’s ADHD or appreciate the impact it had on his behaviours. So, this case emphasises the importance of training and supporting managers in understanding and accommodating neurodiversity in the workplace.

Tip. Neurodivergent employees may require reasonable adjustments, such as to accommodate difficulties with time management and focus or sensory sensitivities, e.g. flexible hours or additional short breaks, breaking down tasks into smaller steps, adjusted deadlines, regular check-ins with a manager, noise-cancelling headphones and natural lighting. Adjustments must be tailored to the neurodivergent employee’s particular needs.

Trap. Seemingly subtle non-verbal behaviours, like sighing in frustration and eye rolling, can be discriminatory if they target an employee because of traits associated with their disability. Such gestures may also meet the harassment threshold.

Tip. Acas has produced guidance for employers on neurodiversity at work. This is a useful starting point for understanding neurodiversity and making your business neuroinclusive.

The manager’s expressions of frustration targeted the employee because of his neurodivergent traits, and so that was discrimination arising from disability. In addition, these subtle non-verbal expressions met the disability-related harassment threshold. Train managers to understand and accommodate neurodiversity in the workplace.