Does an ADHD diagnosis mean an employee is (rather than may be) disabled under the Equality Act 2010?

That's the question the Employment Appeal Tribunal has to determine in Mr Harry Stedman v Haven Leisure Ltd.

Facts

Mr Stedman applied for a role as an animation host at Haven Leisure Ltd, operators of caravan holiday and leisure parks. When his application was unsuccessful, he brought claims of direct disability discrimination, indirect disability discrimination, discrimination arising from a disability, and failure to make reasonable adjustments. 

The tribunal held a preliminary hearing to decide whether his clinically diagnosed autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) qualified as disabilities under the Equality Act 2010.

Employment tribunal

An employee has a disability under section 6 of the Equality Act 2010 if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Some conditions, such as cancer are automatically deemed to be disabilities from the point of diagnosis.

‘Substantial' means more than minor or trivial, and an impairment is ‘long-term’ if it has lasted - or is expected to last - for at least 12 months or for the rest of the employee's life. 

The Equality and Human Rights Commission's Employment Statutory Code of Practice, states at Appendix 2 that ‘normal day-to-day activities’ are those activities carried out by most people on a fairly regular and frequent basis such as walking, driving, using public transport, cooking, and eating. It excludes activities that are only typical for certain individuals or groups, such as playing an instrument or competing in sport at a professional level.  

Mr Steadman explained that he faced several challenges, including:

• Forming friendships
• Remembering shopping lists
• Concentrating on tasks such as reading, writing or watching long programmes
• Using public transport and driving due to a lack of focus
• Participating in social activities; and
• Interacting and communicating with colleagues

The tribunal also had a report from a Consultant Psychiatrist confirming the diagnosis.

The tribunal found that Mr Stedman's difficulties with normal day-to-day activities were typical of someone without a disability - such as shopping, coping with a break-up, and making friends.  It noted that he is clearly sociable, performs publicly, maintains relationships (despite occasional challenges), and visits friends. It also concluded that he may have exaggerated his issues with reading, writing, and concentration, given his academic achievements, and overstated his driving difficulties, as he hadn't attempted to drive. Additionally, it found that he had no issues using public transport, except when it's overcrowded. 

The tribunal found that his impairment didn't have a substantial impact on his daily activities and therefore didn't meet the legal definition of a disability. 

Employment Appeal Tribunal

The EAT explained that when a tribunal has evidence of a clinical diagnosis of autism or ADHD, it must consider that diagnosis, not just as proof of a condition, but also as evidence of its impact - unless there's a reason to doubt the diagnosis. 

However, a tribunal isn't bound to accept that such a diagnosis means that the disability definition under the Equality Act 2010 is met. It must still examine the basis for the diagnosis and assess how it affects the employee's ability to carry out daily activities.   

When considering whether the impairment had a substantial impact on Mr Stedman's ability to carry out normal day-to-day activities, the EAT found that the tribunal had overlooked key principals:

• The correct comparison is between the employee's abilities with the impairment and how they would be without it
• A substantial adverse effect on just one day-to-day activity is enough to meet the threshold; and
• Tribunals must not balance difficulties in one area against strengths in another to reach an overall conclusion about someone's abilities. 

The EAT held that the tribunal wrongly focused on what Mr Stedman could do - like performing in public, forming relationships, and using public transport when not crowded - instead of what he couldn't do or could only do with difficulty. It overlooked his social challenges, memory and concentration issues, and his inability to use crowded public transport. The tribunal placed too much weight on his apparent strengths rather than the difficulties he faced.

The EAT concluded that the tribunal's decision on disability must be overturned and the issue sent to a new tribunal to decide afresh whether he is disabled under the Equality Act 2010. 

Why is this important? 

An employee with ADHD diagnosis will still have to meet the criteria set down in the Equality Act before they will be protected as disabled. If that's disputed, a tribunal will determine the position. But, the absence of a diagnosis does not prevent an employee from meeting the disability definition. Many neurodivergent employees lack a formal diagnosis, often due to long NHS waiting times and other factors which you can read further about in our article ‘Do you need to wait for a diagnosis before making reasonable adjustments for a neurodivergent employee?’.

Regardless of whether there is a diagnosis, the key consideration is the effect of the impairment on the individual's ability to carry out day-to-day activities. A tribunal will compare the employee's abilities with the impairment to their hypothetical abilities without it, focussing on what they cannot do or can do with significant difficulty. 

Even if an employee hasn't disclosed a condition, if you could reasonably be expected to know about it, you will have constructive knowledge and will be expected to make reasonable adjustments. You need to ensure that your managers are alert to signs that an employee may be struggling and consider whether a disability might be a contributing factor, even where it is not immediately apparent.

You will need to talk to the colleague about your concerns, understand how they are affected and, where appropriate, seek input from occupational health or other relevant professionals. 

This is all important because employees with disabilities are protected from discrimination and have the right to reasonable adjustments, so they're not placed at a substantial disadvantage compared to colleagues without disabilities. Failure to recognise or act upon a potential disability can expose employers to significant legal risk.

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