Case Law: EAT Decision involving Neurodiversity and Discrimination

In McQueen v General Optical Council [2023] EAT 36, the Employment Appeal Tribunal was asked to consider neurodiversity and discrimination arising in consequence of the Claimant’s disability.

Background to the case

The Claimant had been diagnosed with dyslexia, some symptoms of Asperger’s syndrome, traits of neurodiversity and left-sided hearing loss, amounting to a disability under the Equality Act 2010. The employer had made adjustments for the Claimant (following Occupational Health referrals), including following up conversations with written instructions, some physical adjustments and also provided him with a “recording pen” so that he was able to listen back and review conversations he had with colleagues.

However, this combination of symptoms led to the Claimant having difficulty interpreting and responding to interactions with co-workers, occasionally coming across as “confrontational and aggressive”, including complaints of him being “rude, disrespectful and wholly inappropriate”. The Claimant also suffered two “meltdowns”.

The Claimant was subject to disciplinary proceedings throughout his tenure at General Optical Council as a result of his actions, eventually leaving employment in 2019.

Employment Tribunal Judgment

The Claimant brought a discrimination claim in the Employment Tribunal (ET), alleging that he had been subjected to unfavourable treatment because of something arising from his disability. The ET decided that some of the behaviour the Claimant displayed, such as standing up and speaking loudly to his colleagues, arose from habit rather than his disability. The ET decided that the Claimant’s conduct arose because of his short temper and a dislike of being told what to do rather than as a consequence of his disability.

The Claimant appealed to the Employment Appeal Tribunal (EAT), arguing that his disability did not need to be the sole or main reason for his conduct as long as it had a significant or more than trivial influence, but his appeal was dismissed. The EAT found that the effects of his disability did not play any part in the conduct that led to the unfavourable treatment complained of.

Despite the Claimant not succeeding on any of his primary claims, the ET did decide that the Claimant had been victimised by the employer’s delay in dealing with his grievance. The employer’s “passive failure to do anything” and “active mishandling” of the grievance caused the Claimant such distress that he was eventually unable to work.

Advice for Employers

While this case shows that an employee’s health condition does not always contribute towards their misconduct or poor performance, it is important for employers to consider whether the cause may be a disability and seek medical advice to establish the extent of this and whether any reasonable adjustments can be made to support them.

This case demonstrates that it is also important for employers to actively deal with and follow a proper process in relation to their employees’ grievances and any disciplinary process. Conducting prompt and proper processes and investigations into grievance and disciplinary procedures can protect employers from paying a 25% uplift in compensation for a breach of the ACAS Code of Practice.

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