Soundbite: Neurodivergence – the growing number of cases and need for employers’ awareness

We are seeing a greater number of instructions from clients regarding issues relating to neurodivergence and there have been several cases in the Employment Tribunal recently where claimants have alleged that their employers have not done enough to support their neurodivergence.

The most recent case to be discussed on LinkedIn is the case of Burns v Gitpod where Ms Burns, who had ADHD and dyslexia, was dismissed for poor performance.  This case has gained attention on social media as one aspect of the case involved Ms Burns being locked out of her hotel room after too much to drink and sleeping in a sauna (which was raised by Gitpod and there was evidence that this was mentioned to her direct reports as a reason for eroded trust and confidence).  The Claimant demonstrated that her ADHD leads to a great deal of forgetfulness and that she is easily distracted and finds it hard to maintain attention and concentration when carrying out tasks, and the Tribunal ultimately found that her dismissal was by reason of something arising from her disabilities.  The Tribunal also found that Gitpod had failed to make reasonable adjustments.

We have also had the case of Khorram v Capgemini UK where Ms Khorram (who had 25 years’ experience in her role) joined Capgemini UK as a pre-sales lead in its cloud infrastructure services unit.  Shortly after starting, she disclosed her diagnosis of ADHD and explained that her condition significantly impacted her executive functioning, managing unstructured tasks, coping with ambiguity and handling excessive multi-tasking.  Despite an occupational health report recommending several specific adjustments, Capgemini did not implement the recommendations and set her complex tasks with tight deadlines.  She took sick leave and was eventually dismissed in her absence due to ongoing concerns about her performance.  The Tribunal held that Capgemini had failed to make reasonable adjustments and that this constituted a continuing act of discrimination.

In light of the risks of litigation, when an employee notifies an employer of a neurodivergent condition, what should they do?

• Take occupational health advice and implement any recommended adjustments
• Consider ADHD and neurodiversity awareness training for colleagues
• Think broadly about adjustments – they can be environmental, procedural, cultural or educational
• Act early – talk openly with employees about what they need and explore options fully
• Small changes can make a big difference – sometimes the smallest adjustments can have the greatest impact

It is important for employers to take proactive steps to support neurodivergent employees to avoid claims and issues occurring.  While the cases above involve ADHD, other neurodivergent conditions such as autism, dyslexia, dyspraxia and Tourette’s syndrome are all conditions that will also involve a consideration of needs and implementing reasonable adjustments.

If you need any assistance with training, or any help supporting staff with neurodivergent conditions, please do get in touch with a member of the team.