According to the National Autistic Society, there are around 700,000 people with autism in the UK, and all will have different strengths, weaknesses and abilities.

Autism can be a disability under the Equality Act, so it is important for employers to understand and support staff who are neurodivergent and be able to make reasonable adjustments for their individual needs. ACAS has recently published a guide to Neurodiversity in the Workplace, which looks at how employers can support their staff.

The recent case involving Mr Sherbourne and N Power highlights the importance of employers putting in place the correct processes and training.

The background

Mr Sherbourne starting work on a fixed-term contract for NPower in October 2017 in their open plan office which had a busy walkway behind him. On his second day, his manager talked with him about his “disruptive and loud behaviour”. Over the following weeks, there was further cause for his behaviour to be of concern. His manager felt Mr Sherbourne was disruptive, argumentative, agitated and displaying unacceptable behaviour. In turn, Mr Sherbourne  was feeling isolated and felt he was being treated differently.

Over the next month he became more  distressed over changes in his work environment and felt he was not getting any comfort or support. He asked to work from home but was refused. He was diagnosed with an anxiety disorder following a breakdown in February 2018, received counselling and referred for an autism assessment.

Npower’s Occupational Health,  stated that T would “almost certainly” be considered disabled under the Equality Act but rather than put in place the adjustments, NPower began a capability process. His employment was terminated before the capability process or his fixed-term contract   had been completed.

What happened at Tribunal?

Mr Sherbourne raised a claim at Tribunal for indirect discrimination and failure to make reasonable adjustments.

The Tribunal found in favour of Mr Sherbourne. The company had no no autism diversity policy, and his manager was unaware of any materials or training on diversity and autism. The ET’s criticism was damning

“continuous management failure… including… failure to understand the Claimant’s disability, failure to implement two sets of adjustments [and] a mixing up of welfare and capability procedures”. 

Npower had applied a Provision, Criterion or Practice  by failing to implement reasonable adjustments, inappropriate use of the capability procedure and using dismissal as a tool to “rid themselves of a disabled employee”. 

What does this mean for you or your business?

Whilst decisions from Employment Tribunals are not binding on other Tribunals, it is very important to note that the failure by the business to take the time to understand the employee’s particular difficulties meant that it was discriminating against him.

For Mr Sherbourne,  reasonable adjustments might include finding a quiet space for him to work, away from a walkway, and allowing him to have a fixed desk would have been simple adjustments which may have made a difference early on. His manager made no attempt to understand what autism meant, or how to support and manage a neurodiverse individual.

Secondly, an important point to note is that the use of a capability process when dealing with sickness or disability related capability issues is not appropriate. Welfare and support must be provided first.

Mr Sherbourne’s case is not unique for autism related discrimination. In Brookes v Government Legal Services, Ms Brookes (who has Asperger’s syndrome) was successful in an indirect discrimination claim that a requirement to take a multiple-choice application test put her at a disadvantage.

These cases highlight the importance of making sure that reasonable adjustments are made to support people with spectrum conditions – however, it must be noted that this cannot be a “one size fits all” policy, it must be tailored to individual need.

Employers should make sure that they understand the issues associated with neurodiversity, and work with employees to understand how to work productively together. Training, appropriate policies and guidance are important. If you need more help on this, please contact us.

What do you need to be doing now?

Review your policies and practices, and review the ACAS guide to neurodiversity. Make sure managers are aware of the need to support employees, and that employees are able to support one another.

You can read the full judgment of T Sherbourne v Npower Ltd here.

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