Employee with ADHD dismissed for sending offensive messages: was it discrimination?
It's now commonplace to interact with colleagues via instant messaging platforms. But this quick method of communication can lead to problems. We consider what other employers can learn from the case of Mr T Duncan v Fujitsu Services Ltd where an employee who sent offensive messagesto colleagues argued that he did so because of his ADHD. We also look at what reasonable adjustments his employer should have made for him.
Facts
Mr Duncan, a Software Developer, raised three grievances, including concerns about Fujitsu's failure to make reasonable adjustments to accommodate his disabilities. These were all dismissed. During that process he disclosed “chat logs” from conversations he had with two colleagues via a messaging platform Fujitsu provided for staff. The messages contained inappropriate and offensive language including “I am gonna f****** string them up by their ankles all of them, every last one of them”. Fujitsu were not impressed and decided to take disciplinary action against him.
Mr Duncan asked to postpone the disciplinary hearing, but later stated he was too unwell to attend and implied it should proceed without him. He sent a lengthy document setting out his mitigating circumstances and argued there was a link between his ADHD, Autistic Spectrum Disorder (ASD) and his behaviour (his inappropriate language). The meeting went ahead in his absence. A few days later 12 questions were sent to Mr Duncan by the disciplinary chair which he replied to but added “I would appreciate no further questions on my disabilities”.
Mr Duncan was dismissed for gross misconduct. The dismissing officer for Fujitsu explained in the dismissal outcome letter:
“I have taken account of your statement that there is a link between your disabilities and the offensive behaviour. I had hoped to explore this particular point in more detail with your Occupational Psychologist, but she was not willing to discuss this with me. Given this issue and the wider context (including the fact that you disclosed the chat logs in connection with your own grievance) I considered whether a different sanction, such as a final written warning, may be appropriate. However, on balance I consider that the online chat content shows deliberate repeated hateful verbal abuse directed at colleagues, and dismissal is appropriate in the circumstances.”
Mr Duncan brought numerous claims to the employment tribunal. The tribunal rejected his unfair dismissal claim and then considered his disability claims.
Failure to make reasonable adjustments
Mr Duncan was successful in three of his claims for failure to make reasonable adjustments:
- Requiring telephone reporting of sickness rather than by email. The tribunal accepted that Mr Duncan was unable to call his manager over the telephone to discuss his sickness absence due to his disability (it didn't explain why). The tribunal noted that a fairly straightforward adjustment could have been to allow a friend or relative to call on his behalf. Alternatively, it could have allowed him to send text messages to notify his manager about his sickness absence.
- Requiring primarily verbal communication. Despite giving staff a platform to send messages, Fujitsu required staff to primarily communicate verbally. This caused Mr Duncan stress and anxiety. The tribunal found that it would have been a reasonable adjustment for Mr Duncan's team lead to mainly communicate with him in writing, as had been the practice with the previous team lead.
- Uncoordinated procedures regarding provision of written information, meeting agendas and goals. Mr Duncan was disadvantaged by the lack of preplanning for meetings, which caused him stress and made it difficult for him to participate. The tribunal said that providing an agenda in advance of meetings is a reasonable expectation. The agenda need not be very detailed, nor must it strictly limit the discussion topics. Additionally, it was also reasonable for an employer to provide brief action points after meetings.
Discrimination arising from a disability
Mr Duncan also argued that his dismissal was discriminatory because there was a link between him sending the offensive messages and his ADHD. He argued that this was discrimination arising from a disability under s.15 of the Equality Act 2010. This claim is made out when an employee with a disability is treated unfavourably because of something arising in consequence of that disability, and where the treatment is not justified as a proportionate means of achieving a legitimate aim.
Mr Duncan alleged that the comments he made were the ‘something’ that arises from his disability. He argued that he sent the messages because of his frustration with Fujitsu's failure to make reasonable adjustments and because he believed it was discriminating against him and there was an indirect link between him sending the offensive messages and his disability.
The tribunal found that some comments were not sufficiently linked to Mr Duncan's disability. However, other comments did relate to his disputes with Fujitsu regarding his disability and its unwillingness to make adjustments. Therefore, the tribunal concluded that there was enough of a connection to consider whether it could justify its approach.
The tribunal ultimately accepted that Fujitsu had seven legitimate aims and that it was proportionate to dismiss Mr Duncan to pursue three of them:
- Prevent the use of threatening language about managers and colleagues
- Prevent harassment and other behaviour that leads to a hostile work environment; and
- Prevent threats of violence against colleagues in any work-related context
Therefore, his section 15 claim failed.
Employment Appeal Tribunal:
Mr Duncan appealed against this part of the decision. He argued that the tribunal should have considered whether his offensive language arose directly from his disability. He claimed that he had experienced an “involuntary loss of control of emotion” and “[didn't] understand social rules” and there was a direct link between the language itself and his disability.
The EAT found that he did not. It explained that Mr Duncan's case before the tribunal was that there was an indirect link between the abusive language and his disability. He hadn't argued that there was a direct link and he couldn't raise this now.
Mr Duncan also argued that the tribunal had insufficiently analysed whether his dismissal was justified as a proportionate means of achieving a legitimate aim. The EAT held that the tribunal correctly identified the legitimate aims and considered whether it could have achieved this in a way that didn't involve his dismissal, such as issuing a final written warning.
The EAT recognised that his comments had not been made directly face-to-face to colleagues. But the language was strong and was abusive towards colleagues. His dismissal was proportionate and there was no error of law. Therefore, this point of appeal also failed.
What can employers learn from this?
This case shows that there are different ways an employee can argue that their conduct is connected to their disability. An employee may argue there's a direct link (e.g. the offensive language was used in the messages because of ADHD) or allege an indirect link (e.g. the language was used because of frustration about the way the employer had handled a dispute (in this case about reasonable adjustments)). Therefore, if an employee is likely to be covered by the disability definition under the Equality Act 2010, employers should consider if there could be a link, either direct or indirect, to the employee's conduct. Obtaining an occupational health report may assist with this.
The tribunal also provided valuable guidance on reasonable adjustments. It clarified that employers cannot refuse to implement reasonable adjustments simply because other employees might be unhappy about them. It said that in order to comply with its obligations under the Equality Act 2010 “…there might be times when an employer is obliged to instruct its employees to take certain courses of action, even if that includes the threat of disciplinary action.”
Although the employee should be consulted about proposed reasonable adjustments, the duty to make them lies with the employer. If an employee makes suggestions, it's sensible to consider this, but you don't have to accept the exact proposal made if you don't think it will work and can suggest alternatives, or modifications. In this case, Mr Duncan had provided email templates for his team to use to help him understand written instructions, agendas, and meeting goals. The tribunal said that Fujitsu was not required to use Mr Duncan's exact templates; if they were impractical or if Fujitsu had a more flexible solution, they should have proposed an alternative (which they failed to do).
You can read more about an employer's obligation to make reasonable adjustments and what else might be reasonable adjustments for some neurodiverse employees here.
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