Reasonable adjustments and neurodiversity: how one employer got it right

Supporting neurodivergent employees is both a legal duty under the Equality Act 2010 and a cornerstone of inclusive workplace culture, but even well-intentioned support can be misinterpreted or go unrecognised - creating challenges for employers and employees alike. 

This article examines the case of K Jaydon v Threesixty Services LLP, in which an employee with ADHD and autism believed their employer failed to provide adequate support. We explore the steps that were taken, consider the tribunal's response, and draw out key lessons for employers.

Facts

In October 2019, Ms Jaydon started working as a Compliance Monitoring Officer (CMO) for Threesixty Services LLP (a company which provides compliance and support services to independent financial advisers). Prior to joining, Ms Jaydon disclosed her attention deficit hyperactivity disorder (ADHD) and explained she was undergoing diagnostic testing for suspected autism (a formal diagnosis was confirmed in October 2021). The company accepted that these impairments amounted to a disability under the Equality Act 2010.  

Initially, Ms Jaydon enjoyed a positive working relationship with her manager, focusing on defined benefit (DB) pension scheme matters and contributing to client workshops. She felt positively regarded and well-supported. 

In 2020, a new appraisal system was introduced. Her January 2021 appraisal rated her as ‘satisfactory’ in three competencies and ‘good’ in the remaining three. The appraisal included clear indicators for each competency and Ms Jaydon engaged with the process. 

From early 2021, Ms Jaydon began reporting to a new manager. Her responsibilities expanded beyond DB pension scheme work, and she undertook training to conduct file reviews - a core aspect of the CMO role. These reviews assess compliance with FCA requirements and the suitability of financial advice. The target for a full-time CMO was an average of 3.5 reviews per week. 

In late December 2021, Ms Jaydon began a personal challenge to run 100 marathons in 100 days. The company adjusted her working hours, promoted her fundraising internally and externally, and donated £1,000 to her chosen charity.

In January 2022, the chief executive asked Ms Jaydon if she could deliver a client training session. She responded that she could, but her schedule was tight, and she outlined her current workload. Her manager sent her a message asking for a call, but they didn't speak until the next day due to scheduling conflicts. Ms Jaydon expected to be reprimanded for detailing her workload, but instead, her manager was concerned she was overburdened and advised her not to take on the task if it would be too much. 

Throughout early 2022, Ms Jaydon continued to develop her file review skills. Her manager encouraged greater efficiency but did not apply undue pressure. A further appraisal took place in February 2022. Although Ms Jaydon believed she should have higher scores, she did not raise any concerns with her manager at the time. In April/May, her workload increased, and two cases were reassigned to try to ease the burden. In June, she raised concerns about workload and her manager responded with suggestions to streamline her approach. 

Subsequently, Ms Jaydon contacted HR to raise a grievance about her manager's style, which she perceived as overly critical. A meeting was held with HR, her manager, and a director to address her concerns. Although support strategies were discussed, Ms Jaydon interpreted questions about her workload as criticism. A follow-up meeting in August 2022 reiterated support measures, including a two-week pause on new work and reminders about only working during her contractual hours.

Ms Jaydon submitted a detailed grievance, outlining concerns about her manager, including specific phrases used by her manager that she found objectionable. She also raised concerns about her workload and resourcing. 

On 18 August 2022, she went on sick leave. The grievance meeting was held the following day, chaired by the chief executive. During the meeting, Ms Jaydon raised several concerns:

• Due to her autism and ADHD, her manager should have recognised that the message requesting a call - sent after the email to the chief executive regarding client training - would likely trigger heightened anxiety.
• Her manager lacked the necessary understanding to effectively manage individuals with neurodiverse conditions.
• She accused her manager of ‘gaslighting’ and engaging in a ‘psychological play on power’. 

The meeting concluded with the chief executive requesting further details and clarification regarding some of her concerns.

While the grievance was under review, Ms Jaydon's wife contacted the chief executive expressing concern about her wellbeing. The chief suggested the parties enter into a settlement agreement to resolve the situation. Ms Jaydon declined the proposal and subsequently submitted extensive documentation in support of her grievance. 

The grievance was not upheld, though the company expressed a desire to support her return. Ms Jaydon appealed, but only one point was partially upheld (it related to a comment that had been taken out of context in the grievance). She then resigned and brought claims of discrimination arising from a disability, indirect discrimination, failure to make reasonable adjustments, victimisation, unfair constructive dismissal, and wrongful dismissal.

Employment Tribunal

The tribunal held that Ms Jaydon's claims under the Equality Act 2010 had been submitted outside the statutory time limit. Nevertheless, it proceeded to reach conclusions on all complaints.  

Indirect disability discrimination

Ms Jaydon argued that the targets set for file reviews (3.5 per week) put her at a disadvantage due to her disability. However, the tribunal found no evidence that her disability adversely affected her reading, writing or processing speeds. 

Regarding the appraisal process, Ms Jaydon argued that it lacked quantifiable measures which put her at a disadvantage. The tribunal disagreed and noted that she had been provided with explanations for the ratings awarded, along with guidance on how to maintain or improve her performance. Therefore, there was no indirect disability discrimination. 

Discrimination arising from a disability 

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.  Ms Jaydon argued that the following was unfavourable treatment:

• Increased emphasis by her manager on the time it had taken to complete tasks without support or adjustments
• Repeated dismissal of concerns over her workload
• She was spoken to in a negative and hostile way
• The meetings in June and August 

She argued that this unfavourable treatment was because of the following ‘something' she argued arose in consequence of her ADHD and autism:

• Slower reading and writing speeds
• Additional time required to complete tasks due to slower information processing
• Tendency to focus on small details before grasping the bigger picture
• Communication style perceived as blunt, rude, or abrupt 

The company accepted that the latter two characteristics arose as a consequence of her disabilities, but the tribunal found no evidence to support that the first two were similarly caused. In any event, the tribunal found that she was not subjected to any unfavourable treatment, so this claim failed. 

Failure to make reasonable adjustments 

This claim also failed. From May 2022 the tribunal found that the company made real attempts to support her and noted in particular the following:

• Adapting the amount of work provided to her
• The attempts in the meetings to help
• The chief executive's willingness to discuss the possibility of identifying another role
• Giving her time to catch up with her work
• Her manager's concern that she should not take on another task if they did not have enough capacity
• The grievance outcome where the chief executive explained that they would like to welcome her back and to support her 

Victimisation

Ms Jaydon claimed that the offer of a settlement agreement constituted an act of victimisation. The tribunal explained that while the conversation was held under s.111A Employment Rights Act 1996, that does not protect it from being disclosed in proceedings brought under the Equality Act 2010. 

Ultimately, the tribunal concluded that the offer did not amount to a detriment, as she was in no worse position for having rejected it than she would have been had no offer been made. In this case, the proposal was communicated in a non-threatening way, and Ms Jaydon had access to legal advice at the time. 

Constructive unfair dismissal

This claim also failed because there was no repudiatory breach of the employment contract by the employer. The tribunal noted that there was no evidence of ongoing discrimination, the employer had made genuine efforts to address the grievance, the process been conducted in a reasonable manner, the working environment was not hostile, and the employer had put forward proposals and options to support a return to work when she felt ready. 

Practical strategies for supporting neurodivergent employees

This case highlights the challenges you may face when an employee does not recognise or accept that support is being offered. 

There can be a disconnect between how support is intended by a manager and how it is perceived by the employee. To mitigate this, it is essential to maintain a clear and consistent record of discussions and the support provided. You should keep detailed notes of meetings where support measures are discussed, including any agreed adjustments. Implementing a disability passport can be particularly helpful. This document serves as a central record of agreed adjustments and can provide continuity, especially when line managers change. 

Clear and tailored communication is also key. While it may not always be possible to control how messages and feedback are interpreted, striving for clarity and consistency in both verbal and written communication is vital. Engaging in open discussions with the employee about their preferred communication style can help reduce misunderstandings and foster a better working relationship. 

The exact support needed will vary from employee to employee. They may need changes to the environment they work in, changes to how they work, or may require aids to help them with their work. There is no one size fits all approach. 

While the legal obligation is on you, as employers, to make reasonable adjustments to avoid the disadvantage the disability causes the employee at work, you should attempt to agree this with the individual. You can read more about suggested adjustments in our article ‘Do you need to wait for a diagnosis before making reasonable adjustments for a neurodivergent employee?’. 

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