Employee misconduct - Taking in account Neurodiversity?

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Joined: 25 Aug 2013
Age: 66
Gender: Male
Posts: 33,206
Location: Long Island, New York

25 Nov 2022, 10:23 am

Neurodiversity, harassment and misconduct

Employers are becoming more aware of neurodiversity and the benefits of more inclusive hiring strategies. At the same time, neurodiversity-based discrimination claims are on the rise. Cases where employees have committed misconduct linked to their neurodivergence can be particularly difficult, as a recent UK ruling illustrates.

Neurodivergent or neuroatypical people may have a disability for the purposes of the Equality Act 2010 even if they do not have a formal diagnosis. It is unlawful to treat someone unfavourably because of something arising in consequence of their disability unless the treatment is a proportionate means of achieving a legitimate aim. Disability-related harassment is also unlawful, which can cover making offensive remarks about neurodivergence.

The recent case of Morgan v Buckinghamshire Council touches on these topics and highlights the issues that can arise when neurodivergence plays a part in misconduct.

Social worker lawfully dismissed for crossing boundaries
The claimant, who has autism, dyslexia and other conditions, was a supervising social worker in the fostering team. She was dismissed for giving gifts to a child without permission from her manager and because of an inappropriate case note she had written.

The claimant brought a claim for unfair dismissal and discrimination arising from disability, mainly on the basis that her autism had impacted her judgment and understanding in relation to the gift-giving policy and appropriateness of the case note. The employer accepted that the claimant was disabled on the basis of her neurodivergences.

The tribunal said that it was inclined to accept that the conduct for which the claimant was dismissed resulted from her disabilities. In the circumstances, however, and given that the claimant declined an occupational health assessment, her dismissal was within the range of reasonable responses and a proportionate means of achieving a legitimate aim. The claimant was not, therefore, unfairly dismissed, nor was she unlawfully discriminated against for reasons arising from her disability. The claimant appealed but the Employment Appeal Tribunal dismissed the appeal. It was particularly important that the claimant declined an occupational health assessment, which meant that her employer had no advice on whether she was likely to repeat similar behaviour, nor could it assess that risk.

Comment about masking autism was harassment
Separately, however, the claimant succeeded in a claim for disability-related harassment. In the letter explaining the outcome of her appeal against dismissal, the appeal officer had stated:

‘it is also of great concern that you chose to withhold your autism through ‘masking’ throughout much of your employment potentially putting at risk the vulnerable children with which you were working.’

The tribunal accepted that the claimant reasonably took this as a suggestion that she had been deceitful, when she had in fact simply learned behaviours which led to her masking her autism, and that she reasonably felt her dignity to have been violated. Pointing out that this was essentially a factual assessment for the tribunal, the EAT dismissed the employer’s appeal against this unlawful harassment finding. Although it was a one-off comment, this did not mean it could not amount to harassment, especially as this was a considered observation in a formal letter rather than an unscripted, heat-of-the-moment remark.

Although in Morgan the employee was found to have been lawfully dismissed there have been other, similar cases where the outcome was different. In Burdett v Aviva Employment Services Ltd an employee who suffered with paranoid schizophrenia was dismissed after he stopped taking his medication and subsequently sexually assaulted his fellow colleagues. The EAT upheld his appeal against a tribunal’s finding that he was fairly dismissed, given the tribunal’s apparent failure to give proper consideration to mitigating factors, or whether there were any suitable alternatives or reasonable adjustments which could have been made.

Professionally Identified and joined WP August 26, 2013
DSM 5: Autism Spectrum Disorder, DSM IV: Aspergers Moderate Severity

“My autism is not a superpower. It also isn’t some kind of god-forsaken, endless fountain of suffering inflicted on my family. It’s just part of who I am as a person”. - Sara Luterman