UK: Case Raises Issues around Managing Neurodiverse Employees whose decision-making may be Impacted by their Condition
Authors: Eleanor Winslet and Charles Urquhart
Ms Morgan, a supervising social worker in the fostering team at Buckinghamshire Council, had various disabilities including autism and dyslexia. She was dismissed for conduct relating to giving gifts to a child for whom she was responsible without the authority of her manager (in breach of the Council’s code of conduct) and for including inappropriate contents in a case note. Her explanation that her conduct was influenced by her autism wasn’t accepted by the dismissing officer who took the view she couldn’t be trusted not to breach the code of conduct again. On appealing her dismissal, she was invited to have an Occupational Health assessment to investigate whether her conduct had been influenced by autism but she declined, and her appeal was unsuccessful.
Ms Morgan brought claims of unfair dismissal and disability discrimination (arising from a disability, and harassment). The tribunal found that her dismissal was within the range of reasonable responses. It considered that the critical issue was whether she was likely to repeat her behaviour and determined that she was. In the discrimination arising from disability claim, it accepted her dismissal was for conduct which was as a result of her disabilities, but that she had “breached boundaries” which were a legitimate aim of the Council i.e. to have guidelines prohibiting gift giving to vulnerable children. As such, the decision to dismiss was justified. On appeal, the EAT found that the tribunal’s conclusions were justified.
Key Action Points for Human Resources and In-house Counsel
This case raises issues around managing neurodiverse employees whose decision-making may be impacted by their condition. Although this case has very particular facts, given that the legitimate aim in question was the protection of vulnerable children – where employers can justify high standards of conduct (for example in the context of regulatory requirements for financial services businesses), they may be able to justify dismissal where they no longer have confidence in an employee upholding those standards, even where the reason relates to their disability.
Ms Morgan’s harassment claim was successful. This related to comments by the person hearing the appeal that she had deceitfully “masked” her autism when in fact she had simply learned behaviours which led to her masking her autism.
This case is far from a gold standard of how to support neurodiverse employees in the workplace, and employers should ensure they treat neurodiverse employees as individuals and make reasonable adjustments where possible.
