For Autism Acceptance Week 2022, I have put together some summaries on important and recent cases involving autism.
In July 2018, Dorset County Council proposed restructuring. Mr Elliott was given the option of redundancy and said he accepted this because “there was an agreement that the disciplinary proceedings would be discontinued, and he could leave the employment of [the Council] with redundancy and notice pay”.
In 2019, Mr Elliott was diagnosed with an autism spectrum disorder and Asperger’s Syndrome.
The EqA defines disability as a “physical or mental impairment” which has a “substantial and long-term adverse effect” on a person’s “ability to carry out normal day-to-day activities”.
When Mr Elliot submitted claims for unfair dismissal and disability discrimination, an Employment Tribunal Judge found that Mr Elliott was not disabled within the meaning of the EqA at the relevant material times. Mr Elliott appealed this decision, and the case went to the Employment Appeal Tribunal (EAT).
The EAT considered the statutory definition of “substantial” (defined as something “more than minor or trivial”). This means that if the impartment on an individual’s ability to perform day-to-day tasks is considered to be more than minor or trivial then this is more than likely to be the end of the matter. If is determined that the impact of the impairment is unclear, then further guidance may be required.
The EAT explained that the focus of the “substantial” adverse effect test was on the tasks that a person either cannot do or can only do with difficulty as opposed to the things that the person can do.
This case is extremely helpful in provided guidance to employers in what is a very complex area. The practical effect of this is that it becomes much harder to argue that there isn’t a substantial adverse effect. Medical evidence should be obtained where possible and appropriate if an employer intends to argue that an employee did not encounter difficulties in day-to-day work activities.
Mr Sherbourne starting work with N Power in October 2017, in their open plan office, which had a busy walkway behind him. Just two days into his employment, his manager had a chat with him about his “disruptive and loud behaviour”. Over the following weeks, his manager felt Mr Sherbourne continued to be disruptive, argumentative, and displayed unacceptable behaviour. Due to his disability, Mr Sherbourne was in fact feeling extremely isolated and as though he was receiving different treatment than other members of staff.
Mr Sherbourne became more distressed over other changes in his work environment and so subsequently asked to work from home, but was refused. He was diagnosed with an anxiety disorder following a breakdown in February 2018.
When assessed by N Power’s Occupational Health, it was stated that Mr Sherbourne would “almost certainly” be considered disabled under the EqA. But rather than put in place reasonable adjustments for him, N Power instead began a capability process against him. His employment was terminated before the capability process had been completed.
When determining the issues, Employment Judge Shulman made the following comments:
“The Respondent applied a provision criteria or practice (PCP), as far as the Claimant was concerned, by failing to implement reasonable adjustments, by inappropriate use of the capability procedure and by using dismissal as a tool to rid themselves of a disabled employee. There is no evidence that the Respondent would apply the PCP to others not sharing the same protected characteristics as the Claimant. The PCP would put others with autism generally at a particular disadvantage compared with those whom the Claimant does not share the same characteristics. The PCP would put the Claimant at that disadvantage.”
Mr Sherbourne was successful at Tribunal in his claim for indirect disability discrimination and for failure to make reasonable adjustments for his condition.
The Claimant in this case was represented by our very own consultant employment solicitor, Ms Fiona Almazedi.
Mr Gregson was employed by United Response as a support worker for around seven years before being dismissed in 2018 after it was claimed he was unable to perform his role effectively anymore.
United Response dismissed him after concluding that reasonable adjustments would be required to allow him to continue working. They decided these would be too expensive for them to implement and that he could not work at any of its local services.
The decision was made even though the charity failed to consider whether one of its own trained job coaches could work with Mr Gregson.
The company eventually dismissed him six days before Christmas in 2018.
While his claims for discrimination failed, Mr Gregson was successful in his claim of unfair dismissal.
The Tribunal, in their conclusion, stated:
“Fundamentally, at the point the Claimant’s employment was terminated [United Response’s] now knew why the Claimant behaved as he did and the Claimant himself now had a greater insight into what his condition was and how it might affect his behaviour. He was demonstrating a willingness and interest in understanding his condition. Other colleagues could reasonably have been given that similar insight and if necessary, given an element of training in terms of working with an autistic colleague, albeit those individuals were in the main already trained in the care of people we support who suffered from autism…
In all the circumstances [United Response’s] decision to terminate the Claimant’s employment fell outside the responses open to a reasonable employer. The Claimant’s complaint of unfair dismissal succeeds.”
Meet the author
Daryl Ross Smith joined Oakwood Solicitors as a Paralegal in October 2018. Daryl finished his degree in Forensic Science at Northumbria University, before completing the GDL and the LPC LLM at the Uni…
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