We have published a number of articles in the last few months where it has been poor line management that has cost employers dearly in employment tribunals. Often, it is simply a lack of awareness and/or training that can lead to difficulties. This is particularly so when dealing with neurodiversity in the workplace. The recent case of James v The Venture (Wrexham) Ltd is an example of how important it is for senior managers to take care when communicating with staff.
The claimant was an autistic employee who worked at a children's centre. He requested a number of adjustments, including a reduction of background noise and dimming of bright lighting. His employer acknowledged these requests but failed to consistently implement them. When he subsequently raised a grievance addressing this and some other issues, it was not dealt with. He was then suspended from his role due to alleged performance issues.
The claimant made claims of failure to make reasonable adjustments, discrimination arising from disability, harassment relating to disability, and victimisation. He was successful in the victimisation claim, which related to the employer's actions following the raising of the grievance, and partially successful in the other three claims. A claim of harassment related to sexual orientation was dismissed due to being brought out of time.
It was clear that mistakes had been made in a number of areas, but it is the harassment related to disability claims that are of particular interest. Mr King, the employer's Chief Officer, made a number of comments to the claimant that the claimant believed were harassment. During a meeting between Mr King and the claimant, which was attended by a number of other employees, Mr King complimented the claimant on his qualities as a play worker and acknowledged the organisation needed to find ways of making things work "even though it's a pain in the arse." He then went on to joke, "Why can't you be ordinary and perfect like the rest of us? But no, jokes aside, having always been something of a weirdo myself, I have some sympathy."
Whether he realised it at the time or not, Mr King had just called his autistic employee a weirdo and marked him out as not being the same as the rest of them. The claimant accepted the first part of the comment was meant as a joke, and the tribunal judge noted that Mr King did not have any adverse purpose in mind when making the comments. In fact, the judgment notes that Mr King "appeared to be trying to put the claimant at ease." The claimant, though, perceived the comments as violating his dignity, and the tribunal considered that it was reasonable to conclude the words had that effect. The tribunal similarly found that comparing the claimant's ability to work due to mental health issues to someone being impacted by "a good booze up" similarly violated his dignity. These harassment claims succeeded.
By comparison, a complaint about Mr King referencing people who "suffer from neurodevelopmental issues" was not successful. The tribunal noted that, in hindsight, Mr King should have referenced people who "have" rather than "suffer" neurodevelopmental issues, but his words did not amount to harassment.
How can this type of claim be avoided?
With reference to the examples given above, the employment tribunal described Mr King's use of language as misguided. Mr King also accepted in evidence that, in hindsight, what he said was inappropriate. Hindsight is, of course, a wonderful thing, but if an employer is to build an inclusive working environment where all employees feel comfortable, the likelihood of this type of scenario arising needs to be minimised and ideally prevented.
We can help with advice and guidance in this area. Training that is kept regularly updated is a significant tool for managers at all levels, empowering them to contribute to creating a supportive environment for all employees. There are also resources for employers on neurodivergence available online from organisations such as the CIPD, Acas, and the National Autistic Network.
