Disability and ADHD: was it fair to dismiss an employee because he threatened a colleague who had ruined his lunch?

When an employee threatened a colleague for ruining his sandwich, he argued that his ADHD caused him to act impulsively and his subsequent dismissal was both unfair and discriminatory. We consider what other employers can learn from the recent case of Mr B Forrester Hayes v Scania (Great Britain) Ltd.   

Facts

On 11 July 2023, Mr Forrester Hayes, an apprentice technician with ADHD, placed his lunch in the tearoom. About 20-30 minutes later, he discovered that it had been tampered with: his crisps were smashed, chocolate bars crushed, and his sandwich had finger sized holes in it. Somone had also emptied a tea bag over it.  

Mr Forrester Hayes suspected that someone from the earlier shift was responsible. He messaged everyone from that early shift, asking who had tampered with his lunch. He also sent threatening messages to TA, an apprentice on the earlier shift, including this one:  “If it was u ur paying for my lunch if u don't ill cut ur tyre valves off”. 

Mr Forrester Hayes was suspended while an investigation took place, and an occupational health report was obtained. 

At the disciplinary hearing, he admitted sending the messages and acknowledged that they were unacceptable. He argued that his ADHD meant he acts impulsively, has intense emotions and high levels of frustration in certain situations. 

He was dismissed for gross misconduct. Scania explained that while ADHD might affect his ability to stay calm in certain situations, they didn't believe that the messages were impulsive because he'd sent repeated messages to multiple people. They also said that “the use of aggressive, threatening, and abusive language towards a fellow employee, even if directed towards their belongings, is wholly unacceptable and violates our company's values and policies. We prioritise creating a safe and respectful working environment for all employees, and such behaviour cannot be tolerated.”

He brought claims for unfair dismissal, damages for breach of contract (notice pay), direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and harassment related to disability. 

Discrimination arising from a disability

The tribunal referenced the case of Sheikholeslami v University of Edinburgh which outlined the correct approach to take. 

• First, did A treat B unfavourably because of an (identified) something? 
• Second, did that something arise in consequence of B's disability?
• The next question is whether that “something” (the messages) arose in consequence of his ADHD?

The unfavourable treatment Mr Forrester Hayes relied on was his suspension, the disciplinary process and his dismissal. The “something” was him sending the messages. 

The tribunal acknowledged ADHD had something to do with sending the messages, so there was a connection although it was a loose one because it's not the same as saying ADHD caused him to send the messages. This wasn't a case where the “something” was an inevitable consequence of the disability, such as where a person is unable to attend work because their disability has made them unfit to work. 

After establishing that there was a loose connection, the tribunal went on to consider whether the unfavourable treatment was justified as a proportionate means of achieving a legitimate aim. They accepted that Scania's aim of protecting staff from aggressive, threatening and abusive language was obviously a legitimate aim. 

As to whether it was proportionate, they found that once Scania found out about the messages he had sent, it had to investigate the matter. The messages could amount to gross misconduct, so it was reasonable and proportionate to hold a disciplinary hearing. Suspension was also a proportionate response and necessary to achieve the aim of protecting other members of staff. 

The tribunal also found the dismissal a proportionate means of achieving a legitimate aim. The threats were serious and likely to alarm the recipient. 

The tribunal agreed Scania was right to decide that ADHD did not excuse his conduct, given the repeated messages to multiple people. He was also on notice from an earlier final written warning that reacting impulsively and taking out his anger on colleagues was likely to lead to dismissal. 

The tribunal emphasised that Scania had a duty to protect its staff and that once they became aware of serious threatening messages sent to another member of staff, they had a duty to take appropriate action, despite Mr Forrester Hayes' apology to TA and his ADHD. Scania were entitled to take the view that there was a risk of a similar reaction in the future and that a final written warning could not achieve the aim of protecting other staff in the circumstances.  

Therefore, it was proportionate to dismiss him and the claim for discrimination arising from a disability failed. 

The other claims

For the same reasons, the tribunal found that the dismissal fell within the range of reasonable responses. As there were also no procedural issues, the tribunal concluded that it was a fair dismissal. 

The direct disability discrimination claim, and the harassment claim also failed. The tribunal concluded that someone without ADHD who behaved in the same way would also have been dismissed. 

Key takeaways

This case is a useful reminder that it's possible, in certain circumstances, to dismiss an employee even where there is a link between their disability and their conduct. You must take care and must have a legitimate aim and be able to justify your decision to dismiss someone as a proportionate way to achieve it.

Although all claims were dismissed in this case, the tribunal highlighted some useful points for employers.

There was a culture of “banter” and “pranking” at the depot where Mr Forrester Hayes worked. This included, on occasion, interfering with each other's tools or toolboxes. While there was not enough evidence for the tribunal to make findings about it, the tribunal did say that “It is possible that the respondent ought not to have allowed the pranks and banter to persist given that it was likely, if not bound, to get out of hand.” This is a useful reminder for employers where there is a similar culture present in their organisation to reset expectations of behaviour with the entire workforce and to then take disciplinary action where appropriate. 

The tribunal also noted that Scania should have specifically asked in the occupational health referral for comment on whether sending the messages was an impulsive response which arose from the ADHD. This highlights the importance of providing detailed background information in an occupational health referral and asking the right, fact-specific questions which focus on the issues you need to resolve. This helps avoid vague reports that lack sufficient information for decisive action. It's always best to seek legal advice for help with framing these questions to make sure you get the most out of a referral to occupational health. 

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