Consider this scenario: an employee undergoes an ADHD assessment before joining an organisation, but their diagnosis did not arrive until after their employment had ended. As an employer or manager, would you consider that they were neurodiverse? Would you make reasonable adjustments for them to do their best work?
The employer didn’t but, when they brought a disability discrimination claim, the Employment Tribunal found that they did have a disability throughout their employment.
This is what happened in Ms L Ellison v Andover Mind [1] and it raises an important question: if someone can have protection under the Equality Act 2010 before receiving a formal diagnosis, are your recruitment, management and performance processes effective enough to support employees for optimal performance?
This decision comes at a time when disability discrimination claims are rising rapidly. Recent Employment Tribunal data [2] recorded nearly 3,500 claims in a three month period, representing a 99% year on year increase. Disability discrimination was the fastest growing major claim type over the year, accounting for a quarter of employment related claims and ranking second only to unfair dismissal.
Employers therefore need to think carefully about when support begins. Doing nothing whilst waiting for an employee to produce a diagnostic report is increasingly difficult to justify, both legally and as a matter of good people management.
What the Ellison decision tells employers
In Ms L Ellison v Andover Mind, the Tribunal considered whether the Claimant had a disability during her employment, even though her ADHD diagnosis was confirmed only after that employment had ended.
Applying the four stage test established in Goodwin v Patent Office [3], the Tribunal considered whether she had:
- a physical or mental impairment;
- which had an adverse effect on normal day to day activities;
- that the effect that was more than minor or trivial; and
- the effect was long term, meaning lasting or likely to last at least 12 months.
The Tribunal found that each element was satisfied. The Claimant had a mental impairment which had a substantial, adverse effect on her normal daily tasks. She relied on difficulties with focus, organisation, time management, memory, task completion, emotional regulation and sleep. The Claimant argued that interruption at work could cause her to lose track of tasks and this impacted her work life substantially. The Tribunal relied on examples such as unfinished tasks and forgotten bills as being examples of effects of a disability. The symptoms of the Claimant’s ADHD had existed during her employment, irrespective of the later date on which a clinician formally confirmed the diagnosis. ADHD is also regarded as a condition that would have been present before diagnosis. Finally, the Tribunal considered the Claimant’s medical assessment which confirmed that ADHD is lifelong.
This does not mean that every employee awaiting an assessment will automatically meet the legal definition of disability. It does mean, however, that the absence of a diagnosis is not the end of the question. Employers need to consider the nature, extent and duration of the difficulties an employee is experiencing, rather than relying on whether or not medical evidence can be provided.
The problem with waiting for proof
Assessment pathways for conditions such as ADHD and autism can be lengthy. During that time, an employee may already be experiencing difficulties with concentration, memory, organisation, sensory processing, communication or executive functioning.
Those difficulties may first become visible at work through missed deadlines, inconsistent performance, absence, an apparent conduct concern or a breakdown in communication. If the employer responds only to the presenting issue, without exploring what might be contributing to it, an opportunity to provide effective support may be lost.
By the time formal medical evidence arrives, the organisation may already have made decisions about probation, performance, discipline or dismissal that are later examined through the lens of potential disability discrimination.
The safer and more constructive approach is not to attempt to diagnose employees. It is to create space for an informed conversation, consider whether further information is needed and identify practical changes and adjustments that may help each individual perform effectively.
What strong foundations look like
Neuroinclusive workplaces are rarely created through a single policy or expensive programme. More often, the greatest gains come from removing unnecessary friction from everyday working practices.
That might include:
- giving candidates clear information about recruitment exercises;
- providing important instructions and priorities in writing;
- using structured onboarding plans rather than relying on employees to absorb unwritten expectations;
- setting specific objectives and explaining what successful performance looks like;
- agreeing communication preferences and holding regular check ins;
- considering flexible working, quieter environments or assistive technology; and
- training managers to recognise when a different approach may be needed.
These practices do not require an employee to identify as having a disability or share a diagnosis. They can improve clarity and consistency for the whole workforce while making it easier to tailor support where an individual has particular needs.
Manager capability is especially important. Managers are often the first to notice that someone is struggling, but they may lack the confidence to raise the subject appropriately. Without training and guidance, a manager may avoid the conversation, make assumptions or move too quickly into a formal process.
Managers should be able to ask what is getting in the way of effective performance, what has helped previously and whether any practical changes should be explored. The aim is not to lower standards. It is to give people a fair opportunity to meet them.
Support should be based on need, not labels
Neuroinclusion is sometimes presented as a compliance exercise. This overlooks its wider value.
Organisations that design clearer and more adaptable ways of working can recruit from a broader talent pool, retain skilled employees and benefit from different approaches to analysis, creativity and problem solving. They are also better placed to address concerns early, before they develop into damaged working relationships or formal claims.
The lesson from Ms L Ellison v Andover Mind is not that employers should assume every employee has a disability. It is that waiting for a diagnosis before offering support or adjustments is not the way forward.
With lengthy assessment pathways and rising disability discrimination claims, the legally safer approach, and the better management approach, increasingly point in the same direction which is to build a workplace that enables the broadest possible range of people to succeed from the outset.
Neurodiversity is nuanced and sensitive, and that’s exactly why employers benefit from a robust framework. In addition to developing this with your organisation in mind, Loch supports with the implementation, creating practical, people-centred and robust processes that suit your needs. Please get in touch with us via hello@weareloch.com or call 0203 667 5400 for more information.
[1] https://assets.publishing.service.gov.uk/media/6a69f503701b2d693e5b9421/Ms_L_Elliison_v_Andover_Mind_6016512.25_JDT__25.7.26_.pdf
[2] https://yerty.co.uk/guides/disability-discrimination-tribunal-data-outcomes
[3] https://www.casemine.com/commentary/uk/clarifying-disability-criteria-under-the-dda%3A-insights-from-matthew-goodwin-v.-patent-office/view
