Key takeaways
Tribunal misjudged neurodiverse candidate’s status
Court says autism and ADHD diagnoses must be properly considered.
Clinical diagnosis carries legal weight
ASD and ADHD can indicate substantial impact on daily life.
Employers should review how they define disability
Neurodiversity may meet legal criteria under the Equality Act.
Disability discrimination: was a neurodiverse job candidate disabled?
The EAT has recently held that a tribunal failed to properly assess whether a job candidate was disabled before it dismissed his disability discrimination claim, and gave some guidance on the legal implications of a clinical neurodiversity diagnosis.
Following an unsuccessful application for an animation host vacancy, S brought a disability discrimination claim against a major UK caravan and leisure park provider. S has neurodiversity – with diagnoses of Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). The employment tribunal held that S was not disabled for the purposes of the Equality Act 2010 at a preliminary hearing.
The EAT upheld S’s appeal and held that the tribunal had, on the facts found, been perverse to rule that S was not disabled. In considering whether someone has a disability:
It is sufficient if the claimant has a mental or physical impairment that has a substantial (more than minor or trivial) adverse effect on just one day-to-day activity;
The tribunal must not weigh what a claimant cannot do against what they can do, either with reference to a single activity or generally in relation to all day-to-day activities; and
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.
The EAT went on to give non-binding guidance that a diagnosis of ASD or ADHD is not to be regarded only as constituting an ‘impairment’ for the purposes of the definition of disability. The diagnosis reflects a clinician’s opinion that the individual has significant (‘more than minor or trivial’) difficulties with the areas of functioning covered by the clinical diagnosis. Unless the reliability of the clinical judgment is in question, the diagnosis is therefore a relevant factor that the tribunal must consider when assessing whether the impairment has a ‘substantial adverse effect’ on the individual (i.e. of its impact). Although this non-binding guidance relates only to diagnosed ASD and ADHD, there does not appear to be any logical reason this would not be equally applicable to other clinically diagnosed forms of neurodiversity.
