Neurodivergence | Worker claims ADHD led to their sacking - should HR have spotted the signs?

Worker claims ADHD led to their sacking - should HR have spotted the signs?

A judge has dismissed claims that a worker - who was sacked after turning up late on seven of their first nine days on the job – should've had their ADHD condition taken into consideration by the firm.

As reported by the Law Gazette, M Nabeel Ud-Din took former employer CJCH Solicitors to a tribunal after being sacked in 2019 for poor time-keeping and his attitude towards colleagues.

Ud-Din told the tribunal that, in being sacked, he had been the victim of disability discrimination, on account of having ADHD (Attention deficit hyperactivity disorder). However, the employment judge rejected Ud-Din's claims, ruling in favour of the firm after the firm which presented “clear and unequivocal” evidence that contradicted Ud-Din's claims he had made bosses aware of his neurodiversity.

The tribunal also rejected the notion that the ADHD should have been “self-evident”.

The tribunal had heard that Ud-Din turned up late for work on seven of his first eight official working days, following an induction day, as well as taking a lunch break that lasted more than two hours.

With reports of poor behaviour towards colleagues compounding the firm's frustration over his time-keeping, Ud-Din was subsequently sacked after just nine days on the job, but it was allegedly only after his dismissal that he referenced having ADHD, when he lodged an appeal.

As wrote Law Gazette: “The judge stressed that the firm could not be expected to know about any medical issue as there was nothing about it in Ud-Din’s CV or mentioned at interview, and there was nothing in his poor time-keeping to indicate a potential underlying disability. All claims were dismissed.”

Are neurodivergent candidates afraid of disclosing their conditions?

However, studies have shown that a fear of discrimination means many neurodivergent people do not disclose their situation at interview stage and beyond.

It could be that only once you have employed a neurodivergent person, you become aware of their challenges. Failure to support your neurodivergent employees comes with serious consequences. For example, employment tribunals in which employees alleged they were discriminated against for being ‘neurodiverse’ rose by a third from 2021 to 2022, according to data collated by ToHealth.

And with one in seven people in the UK identifying as neurodivergent, it is time for companies to step up and ensure that they have inclusivity strategies in place to ensure everyone within their organisation feels comfortable at work, and equally important to the business. It’s also essential that companies take the time to learn about neurodiversity, and support their entire network, including their neurodivergent employees.

Despite this need, 2022 data from Texthelp found that just 28% of HR professionals were ‘very confident’ in identifying different types of conditions that are considered a neurodivergence. Almost one in ten (nine per cent) said that they were not confident at all.

Matin McKay, CEO of Texthelp, said that neurodiversity should be a core part of an organisation’s D&I strategy.

He previously told HR Grapevine explained: “... there remains a lack of understanding of neurodiversity and the various forms it can take. As many as one in seven individuals have some form of neurodivergence, and many conditions are not visible.

“Thankfully, awareness is increasing and more businesses are stepping up to provide the necessary support for employees with neuro-differences. Combining employee awareness with practical company processes will make sure staff from all backgrounds are supported by their employer.”

Time management, disorganisation and more

According to ADHD action, around 1.5million adults in the UK are thought to have some form of ADHD – however only 120,000 are formally diagnosed, suggesting from an employment perspective that huge numbers of UK workers could be going without the support from their employers that they need.

And unfortunately, many of the common demands of the workplace and how our idea of work is structured – what professional behaviours are expected from ‘productive workers’ – typify exactly what many ADHD sufferers struggle with.

For example, according to ADHD Coaching, adults that are not diagnosed and subsequently treated for ADHD may struggle with being able to concentrate for longer periods; forgetfulness and short-term memory issues; being disorganised and having difficulty maintaining daily routines.

Other common difficulties are impulsive behaviour, often interpreted by others as thoughtlessness, poor time management, poor social skills, feeling overwhelmed by everyday tasks and having trouble completing a task.

However, as the ADHD foundation points out, to only focus on the perceived ‘negatives’ would be highly reductive and miss the wide range of strengths many people with ADHD have.

According to the foundation, these include an ability to ‘hyperfocus’ on things they are interested in; a willingness to take risks; spontaneity and flexibility; good in a crisis; creative ideas; thinking outside the box; often optimistic; motivated by short term deadlines (so working in sprints rather than marathons) and a keen eye for detail.

So, what should employers do?

As the Scottish ADHD Coalition points out, ADHD can be seen as a disability under the Equality Act 2010 – and therefore employers have a responsibility to protect employees and potential employees from discrimination and harassment, and to make reasonable adjustments to assist them to do their jobs.

But beyond the legal requirements, the Coalition argues that the best way to support employees with ADHD is to find out about the condition and show understanding and a reasonable degree of flexibility in relation to the difficulties which it can cause.

This can include, for example, agreeing a 15-minute start and finish time window, rather than a rigid fixed start time with sanctions for being slightly late, and/or allowing the employee to delegate non-core aspects of the job which they find particularly difficult to complete, such as completing paperwork or timesheets – which otherwise might make the whole job unachievable.

Flexibility is key

The Attention Deficit Disorder Foundation (ADDF) also emphasises the importance of flexibility, stating: “While corporate policy may dictate ‘nine to five’ hours, some ADHD employees do much better with a different schedule. Each individual with ADHD is different, but some may work best for a few hours late at night and then some in the afternoon, while others may simply need a schedule that is shifted earlier or later by a few hours. Only the ADHD individual will be able to identify their specific best times of operation.”

The ADDF also advocates for assignment of tasks based on strength: “In addition to placing the employee in situations that lessen the severity of their symptoms, it is also important to assign tasks based on the employee’s demonstrated strengths. By focusing on the employee’s strengths when assigning tasks or assessing the best manner to deliver feedback can pay huge dividends.

“Sometimes just assigning certain tasks to be completed at a specific time of day, when a symptom is at its lowest, can be enough to overcome the symptom completely.”

Embracing neurodiversity

Despite there still being stigmas attached to neurodiversity, there’s a growing understanding and appreciation of the roles these individuals play within the workforce and society, and employers are extremely well positioned to not only drive social change but reap the business rewards, too.

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