Esther Marshall
Employment Advice
An important development in the Law around Neurodivergence and Employment
A recent case in the Employment Appeal Tribunal has shed light upon how a diagnosis of ASD and / or ADHD will be treated in disability discrimination cases.
In Stedman -v- Haven Leisure Ltd, the claimant (who had been diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder) had applied for a job with Haven, who own and operate holiday parks. His application for the role of Animation Host was unsuccessful. Mr Stedman issued a claim against Haven, alleging disability discrimination.
The Employment Tribunal held at a preliminary hearing that Mr Stedman was not disabled for the purposes of the Equality Act 2010. The Tribunal found that he had achieved on an academic basis, was able to perform in public and socialise. On that basis his diagnosis did not have a substantial impact upon his ability to carry out day-to-day activities.
Mr Stedman appealed, and the Employment Appeals Tribunal found that the approach taken at the preliminary hearing was wrong. The reasons were:
- In deciding whether or not the effect of an impairment is substantial, the correct comparison is between the person with the impairment, and how they would be without it – not between the person with an impairment and another person.
- The Tribunal had wrongly focussed upon what Mr Stedman was able to do, rather than what he could not.
- The effect of the impairment need only have a substantial (i.e. not trivial) adverse effect upon just one day-to-day activity, not every activity.
The EAT also, importantly, said that a diagnosis of ASD or ADHD could be evidence not just that a disability existed, but also of its impact – the fact of the diagnosis means that a medical professional has judged the person’s functioning to be “significantly different than the norm”.
The matter was referred back to be considered afresh by a different Tribunal.
Esther Marshall, Member, Solicitor and specialist in Employment Law, said:
“The law around neurodiversity and employment is developing as more people are receiving diagnoses. Employers should recognise that neurodiverse people can bring different skills to the workplace and contribute equally with neurotypical employees.
Employers should consider developing a policy around neurodiversity in the workplace, or at least making sure that their existing inclusion and diversity and recruitment policies cover this very important issue.”