UK: Disability Discrimination: Neurodiversity
Authors: Frances Ross and Charlotte Stern
Mr Stedman had diagnoses for Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). He applied for a role as an Animation Host with Haven Leisure Ltd and was unsuccessful. He then brought a claim of disability discrimination against Haven Leisure Ltd based on the way that it handled his application.
Before the main hearing, the Employment Tribunal was asked to consider whether Mr Stedman was disabled; that is did he have a physical or mental physical impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. In this case, the ET concluded that he was not disabled.
He appealed and won. In judging whether the adverse effect is substantial, the comparison is between the claimant as they are and as they hypothetically would be without the impairment. It is not a question of weighing up the person can do, versus what they cannot.
The Employment Appeal Tribunal (EAT) commented that just because someone has a diagnosis of ASD or ADHD does not mean that they are disabled. Autism and ADHD manifest in different ways in different people. However, the EAT’s view was a diagnosis may well be relevant to the question of whether the impairment has a ‘substantial adverse effect’ and that a diagnosis ‘reflects a clinical judgment that someone is significantly different from the norm as regards the area of functioning covered by the diagnosis”. Although this point was not the key issue for the court to consider, it is still useful guidance.
Key Action Points for Human Resources and In-house Counsel
An estimated 15% of the UK population are neurodiverse. If someone has a medical diagnosis of a neurodiverse condition, that will be a factor to take into account when considering whether someone is disabled. It’s important to consider what reasonable adjustments a disabled job applicant or employee may require and take steps to avoid any disability related detrimental treatment.
