Tue, 04 May 2021
Consider the dilemma. An employer is struggling to manage an employee, whom it suspects may have autism. He is good at his job, but lacks interpersonal skills. He appears abrupt in meetings, seems to ignore others’ views and is perceived as blunt. In private, managers start to wonder whether he might be “on the spectrum”. What should they do?
Option A: Pop the question
“Do you have autism?” sounds like an explosive question. How will he react? Will he take offence? If he is later dismissed for poor behaviour, he may argue it was discriminatory. Direct discrimination is potentially in play: s.13 Equality Act 2010. Assuming he is autistic, he may argue his disability was a factor in the dismissal. Even if he is not autistic, he may still argue discrimination based on a perceived disability. Perceived disability claims are valid: see Chief Constable of Norfolk v Coffey  EWCA Civ 1061. Will the employer regret ever having asked the question at all?
Option B: Don’t even go there
The alternative is to duck the issue. But what if his behaviour continues to alienate colleagues? What if he is performance managed, then dismissed? If he had been autistic all along, the employer has just lost a valuable employee. Ironically, it may even face a different type of Tribunal claim: s.15 Equality Act 2010. It has treated him unfavourably because of something “arising from” his disability. The reason for dismissal might be termed as “poor communication style”. But, for an autistic person, communication style something that arises from his disability.
The employer might hide behind its lack of knowledge of C’s disability. But is a “don’t ask, don’t tell” approach really likely to go down well in the Employment Tribunal? The test is whether the employer knew or could “reasonably have been expected to know” of the disability. A skilled cross-examiner should be able to expose managers’ private suspicions regarding autism…
The right answer?
Neither option is risk-free. The facts are inspired by a recent trial. This time I was for the employer. It chose Option A and asked the question. It turned out the employee did not have autism. They reacted badly. Some months later they were dismissed for poor behaviour. They relied on the “autism” conversation and sued for direct discrimination based on perceived disability. At trial, the managers did face some uncomfortable questions. Yet we were able to show that they had thought long and hard before raising the issue of autism with the claimant. They had asked it as tactfully as possible and in a genuine attempt to support. When the employee reacted badly and shut down the conversation, managers took it no further. The Tribunal held that the employer had perceived that the claimant was disabled but, equally, that it had done nothing wrong. It rejected the claims.
When it comes to neurodiversity, discrimination law is playing catch up. So too is society as a whole. How often do we hear people casually throw around terms: “on the spectrum”, “slightly dyslexic” and “a bit OCD”? It is easy to understand why neurodiverse employees may be reluctant to disclose their condition and, equally, why employers may hesitate to ask about it. Of course, some people are only diagnosed later in life, which then creates an added complication.
Whether acting for employer or employee, my advice is the same: be straight up.
- Top tip for employees: tell your employer about your condition. A responsible employer will offer its support and may adjust the way it manages your work and appraisals. Of course, an irresponsible employer may react badly, but risks a Tribunal claim.
- Top tip for employers: be proactive. Don't let your suspicions about an employee fester in private. Raise the issue. Explain to them that such behaviour would usually be dealt with under the disciplinary procedure, but that out of fairness you want to explore all possible avenues including whether there might be an underlying medical factor. Ask them open, non-judgemental questions and do not fall into the trap of simply assuming they have autism. Do ask them if there is any medical information they wish to share and whether they would be happy for a referral to Occupational Health. If they shut down that line of inquiry, respect their choice. At least you will have given them the opportunity. Without realising, you will also have future-proofed your case against a possible s.15 claim. (If the employee had refused to disclose their disability when asked, then how could you reasonably have known about it?)
- ACAS Guidance: ACAS guidance on this issue is hard to find on the web and in fact has been “archived”. Here is a little gem that I found just in time for my trial - you too may find it useful: https://webarchive.nationalarchives.gov.uk/20210104114616/https://archive.acas.org.uk/index.aspx?articleid=6678
About the author
Changez is a barrister specialising in employment and discrimination law. He acts for employers and employees. He has appeared in numerous discrimination trials and appeals, including three before the Court of Appeal.