Does your onboarding process discriminate against neurodivergent employees?

Employers are legally required to make reasonable adjustments to prevent disadvantage caused by an employee's disability in the workplace. This duty arises not only during employment but also at the recruitment and onboarding stages. 

We explore the case of Mr L Moore v Greene King Retail Services Limited where an employee experienced disadvantage right from the very start. 

Facts

Mr Moore applied for a chef position at a Greene King pub. When he met with the kitchen manager to discuss the job, he mentioned his dyslexia and struggled to read or write. The kitchen manager assured him that this would not pose a problem and offered him the role. He intimated that Mr Moore would begin working 32 hours per week, with the arrangement to be reviewed over time. No definitive agreement was reached regarding his working hours. 

A written contract of employment was prepared, stating that the role was for a fixed term and that Mr Moore would have no set working hours, as these would vary weekly according to the pub's operational needs. To access the contract, Mr Moore was required to install an app on his phone, view a copy of it, and then click a box to confirm he had read and agreed to it. Although he did tick the box, because of his dyslexia he did not read the contract or the accompanying wording explaining that ticking the box constituted agreement to its terms. 

Mr Moore started working and was required to complete online health and safety training via an app. He only completed some of this - and that was with the help of his wife. 

During his first week, he worked 24.06 hours, rather than the 32 hours he was scheduled to work, because he was ill. 

Following this, the general manager informed Mr Moore that while feedback from other chefs had been positive, there were concerns about his ability to read kitchen orders on the screen. The manager said, “…because you can't read the orders on the screen in the kitchen, you are going to struggle… if we can't come up with a reasonable adjustment then we will have to lay you off”. In response, Mr Moore suggested the use of a Bluetooth earpiece connected to the pub's computer, which would relay on-screen information audibly through the headset. 

He was referred to occupational health, which identified a wireless headset as a potential adjustment. That was not implemented.

Mr Moore was removed from the rota because he had not completed all the required online training. He raised a grievance, and two meetings were held in an attempt to resolve the issues, but they were unsuccessful. A message was left on Mr Moore's phone informing him that, as no viable way forward had been found, the pub would not be continuing with his employment. 

At that stage he had been employed for 10 weeks but only worked in the pub for one week.  

He brought claims for failure to make reasonable adjustments, and other claims.  

Employment tribunal 

Mr Moore claimed that the pub failed to make reasonable adjustments. The pub required kitchen staff to be able to read food orders, to undertake online health and safety training, and sent written invitations to grievance hearings. He argued this put him at a substantial disadvantage because of his dyslexia and the pub should have provided an auxiliary aid, namely the Bluetooth headphone to overcome his difficulties reading customer food orders. 

The pub accepted that Mr Moore had a disability under the Equality Act 2010 and a few days before the final hearing, it also accepted liability for the failure to make reasonable adjustments claim. The tribunal still commented on it and said that had adjustments been made it is “…highly likely that the adjustments would have enabled him to retain the job…”. 

Compensation

In relation to the failure to make reasonable adjustments claim, Mr Moore was awarded a total of £24,005.63 which included the following:

• £12,000 for injury to feelings. This fell at the bottom end of the middle Vento band (at the time this was between £11,200 to £33,700). The tribunal took into account the fact that while Mr Moore was not in a good psychological state prior to commencing work at the pub, it improved upon securing the role but then deteriorated significantly because of how he was treated, leaving him feeling worthless, humiliated, suicidal and anxious.
• £9,577.04 for loss of earnings and interest. The tribunal considered it was reasonable to compensate him for an 18- month period, based on a weekly wage of £273.83 and an average working week of 24 hours. This figure was then adjusted to account for tax and to reflect the tribunal's assessment that there was a 25% chance his employment would have ended before the conclusion of the 18-month period. 

Key takeaways

Recruitment practices vary from employer to employer. You may ask for a CV or perhaps you require a job applicant to complete an online form or complete an assessment. Whatever your approach, it's important to think about whether the process is suitable for all candidates. Most employers ask candidates to tell them if they need any adjustments to attend an interview to accommodate their disabilities, and that is usually handled by HR. But they don't always consider the application stage. 

Managers need to understand this too - particularly if they are taking an active part in the recruitment process. They need to be able to respond appropriately, understand what the onboarding process involves, and be able to identify and implement changes that help alleviate the disadvantage.

In this case, the manager was told about Mr Moore's dyslexia from the very start, but no changes were made to the pub's standard procedures to support him. 

While apps and digital platforms can streamline communication with candidates and staff, it's important to recognise that not everyone will be able use these tools effectively or have the technology they need to access them. Consider if you have alternative methods available so that an employee can access the information they need.

Managers must also understand that it is unlawful to discriminate against job applicants on the grounds of any protected characteristic (for example, sex, disability, age). For example, it would be unlawful to reject a candidate because of their age or the possibility that they may become pregnant. Even where there is no intention to discriminate, unconscious bias can still influence decisions. That's why it's vital that managers involved in recruitment receive training to recognise and mitigate these risks. 

Finally, remember that the duty to make reasonable adjustments is a legal obligation on you as the employer. In this case, the pub disregarded Mr Moore's suggestion for a headset even though it had been identified as a reasonable adjustment by occupational health. Tribunals tend to take a dim view of employers who commission OH reports and then ignore their recommendations.

You are only required to make reasonable adjustments. The key word is reasonable. If the adjustment isn't reasonable (and you'll need good evidence to support this), think about whether there are other options you can suggest. Keep a clear paper trail documenting the decision-making process and rationale. 

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