ADHD and misconduct: can you dismiss an employee for sexually inappropriate comments?

These issues were considered in Madden v Commissioner of Police of the Metropolis, a case which highlights the risks of failing to properly consider disability and medical evidence during a disciplinary process.  

Facts

Mr Madden had worked as a Quality Control Officer in the Police National Computer Bureau (PNCB) since 2001. In September 2022, he was diagnosed with attention deficit hyperactivity disorder (ADHD) and related conditions which affected his communication, impulse control and ability to read social cues.  

In April 2023, Mr Madden was told that colleagues had raised concerns about inappropriate messages and comments he had made. PNCB launched an investigation and three colleagues provided statements. 

Mr Madden's line manager described a number of comments she considered inappropriate, including remarks about her appearance such as, “Can I tell you, you look lovely in your WhatsApp photo” and “It always makes me smile when I see your face”. Although she said the comments were unwanted, she did not feel uncomfortable or unsafe. She said she had raised the issue with Mr Madden in September 2022 and considered the matters relating to her resolved. She also noted that his behaviour improved significantly once the investigation began. 

Another colleague described an exchange that took place while Mr Madden was off work sick in the summer of 2022. After she commented that his PS5 games console would help keep him occupied, he replied, “yea you can't beat a good old play with myself on my joystick”. She also said he repeatedly encouraged her to use the work gym and asked what she wore there. Also, after she helped him with a work issue, he said, “I would kiss you but may get the office talking lol”. She said that his messages often had a sexual or flirtatious tone, but they had since stopped.

A third statement came from another team leader, who described Mr Madden as overly friendly but that he came across as a nice person. She also referred to a comment he made in response to a Facebook photo she posted of herself wearing a cheerleader's outfit, in which he replied, “I was going to ask where are your Pom Poms”, a remark she considered crude. 

In a statement given under caution, Mr Madden accepted responsibility for his comments and said he was upset to learn that he had caused offence. He explained that his ADHD made it difficult for him to read social cues and caused him to speak or type impulsively without thinking. Although he had received a diagnosis in 2022, he said that he did not start medication until early 2023. He provided a report from a consultant psychologist which explained these difficulties. 

The investigating officer concluded that there was insufficient evidence of gross misconduct but a case to answer for misconduct. However, when the matter was considered by the ‘appropriate authority’, it decided that if the inappropriate comments were proven, they would amount to gross misconduct. 

Mr Madden was invited to a disciplinary hearing. His solicitor wrote to PNCB explaining how his medical conditions affected his behaviour and arguing that dismissal would be discriminatory and unfair. The letter also said the alleged issues should have been dealt with at the time they occurred rather than grouping historical allegations together. A statement was also provided by a psychotherapist, who had been working with Mr Madden since July 2023, which confirmed that his behaviour had improved significantly. 

Mr Madden was unable to attend the disciplinary hearing due to ill health and instead provided written submissions. He was dismissed in February 2024. He appealed and attended the appeal hearing remotely with the support of his wife, but the appeal was unsuccessful. 

He brought claims in the employment tribunal for unfair dismissal, discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments. 

Employment Tribunal 

Unfair dismissal

The tribunal found that the dismissal was both procedurally and substantively unfair. 

There was a nine-month delay between Mr Madden being told about the investigation and the disciplinary hearing. This delay caused him significant additional distress and impacted his mental health. 

Although he was allowed to make written submissions, the tribunal said this was not an effective substitute for attending the hearing and that further reasonable adjustments should have been made. At the appeal stage, Mr Madden was allowed to attend remotely with the support of his wife. The tribunal found no good reason why he was not offered the same adjustment at the disciplinary hearing. This omission put Mr Madden at a disadvantage. 

While PNCB accepted that Mr Madden was disabled under the Equality Act 2010, the tribunal found that it failed to properly consider this before taking disciplinary action and it also gave little weight to his disability when deciding to dismiss him. The tribunal criticised the disciplinary panel for failing to consider key evidence - it did not take account of the solicitor's letter or the psychotherapist's statement. The tribunal said that, had the panel considered this evidence, it may have affected the outcome. As the panel did not consider all relevant information, the decision to dismiss was substantively unfair. 

PNCB argued that the impact of the comments on the three colleagues, and the breach of professional standards, justified dismissal. However, the tribunal found that the investigating officer overstated the impact of Mr Madden's conduct. Although it was said that all three colleagues felt extremely uncomfortable, the two managers stated that, while the comments were inappropriate, they did not feel uncomfortable. This factual error was carried through into the dismissal decision. As to the alleged breach of standards, the tribunal found that while PNCB's primary concern was reputational damage, there was no evidence of actual reputational harm, and any potential damage was speculative. 

The tribunal found that the appeal did not correct these failings and taking all the circumstances into account, it concluded that dismissal was neither fair nor reasonable. Mr Madden's unfair dismissal claim therefore succeeded. 

Discrimination arising from disability

The tribunal also upheld Mr Madden's claim for discrimination arising from disability under section 15 of the Equality Act 2010. The tribunal found that Mr Madden's difficulties with communication, impulse control and understanding social boundaries arose from his ADHD. The inappropriate comments that led to disciplinary action formed part of those difficulties. As Mr Madden was dismissed because of those comments, this amounted to unfavourable treatment because of something arising in consequence of his disability. 

The tribunal then considered whether his dismissal could be justified as a proportionate means of achieving a legitimate aim. It concluded that it was not and Mr Madden therefore succeeded in his claim for discrimination arising from disability.  

Indirect disability discrimination 

This claim failed. The tribunal found insufficient evidence of a general practice of failing to consider ADHD in gross misconduct cases or of making inadequate adjustments for employees with ADHD. 

Failure to make reasonable adjustments

In relation to the unfair dismissal claim, the tribunal said that Mr Madden should have been allowed to have his wife accompany him to the disciplinary hearing for support. However, in his failure to make reasonable adjustment claim Mr Madden argued that PNCB should have gone further and allowed a family member to represent and speak for him at the disciplinary hearing, rather than simply accompany him. While the tribunal accepted that he was disadvantaged because PNCB did not allow this, it concluded that allowing a family member to represent him was not a reasonable adjustment. This claim therefore failed. 

Key takeaways

Employment tribunal claims referencing neurodivergent conditions are increasing. Analysis by Irwin Mitchell shows that in 2020 there were 265 recorded tribunal cases referencing neurodiversity conditions. By 2025, this had increased to 517 - an increase of around 95% in five years. You therefore need to make sure that you understand your legal obligations. 

An employee does not need a formal diagnosis to qualify as disabled under the Equality Act 2010. The key question is whether a physical or mental impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Even if an employee does not explicitly disclose a disability, you may still be treated as having knowledge of it if you reasonably ought to have known. 

Where conduct issues arise and an employee may have a disability, you should consider whether the behaviour is linked to that disability. Medical evidence can help you understand any link and should be properly considered. A connection does not mean you cannot take action, but you must act carefully and be able to justify your approach as a proportionate means of achieving a legitimate aim. 

You should ensure that all disciplinary processes move forward promptly and without unnecessary delay, as delays can exacerbate health issues and undermine the fairness of the process. Decisions must also be based on the true facts. In this case, the employer relied on an inaccurate view of the impact on colleagues and unsupported concerns about reputational damage, which rendered the dismissal unfair.

It is also important to note that the duty to take reasonable steps to prevent sexual harassment will be strengthened in October 2026, when you will be required to take all reasonable steps. From that date, you will also be liable where a third party harasses your employees. You can keep up to date with these changes and find out how you can prepare here. 

We offer a wide range of support and services at all stages of the Employment Tribunal process. You can find out more about this in our brochure. 

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