UK: Disability discrimination: Neurodiversity

Authors: Stephen Miller & Corinna Harris

Mr McQueen is neurodiverse, having dyslexia and symptoms of Asperger’s Syndrome, as well as left-sided hearing loss which caused him some difficulties with his interactions in the workplace. It was accepted that these conditions amounted to a disability under the Equality Act.

He was involved in altercations with colleagues which led to him having a “meltdown” and becoming “loud and angry”. Advice was sought from occupational health and changes were made to Mr McQueen’s way of working. He was also the subject of two disciplinary proceedings.

Subsequently, Mr McQueen brought claims including for unfavourable treatment because of something arising in consequence of a disability. The tribunal found that his behaviour resulted from him having a short temper and resenting being told what to do, rather than because of his disability.  The EAT agreed with the tribunal’s findings.

Key Action Points for Human Resources and In-house Counsel

This case is very fact specific, and employers should exercise caution before relying on this decision in the context of managing disabled employees with neurodiverse conditions.

Before assessing whether an employee’s impairment or disability is a factor in their conduct at work, as happened in this case, the employer should seek occupational health advice.

The circumstances are also a reminder that when investigating an employee for an out-of-character act of misconduct it is worth considering whether the cause may be a disability, even if undiagnosed.  Most Equality Act claims are judged by what is known by the time of any subsequent tribunal claim when medical reports may have been obtained.

McQueen v General Optical Council