“Poor organisation, forgetfulness, and difficulty getting started on tasks requiring significant mental effort.” If this assessment of an employee had appeared in an appraisal, it might reasonably be expected that the individual concerned would soon be on a performance improvement programme, and at risk of a capability dismissal. However, in Hogger v Genesis PR, the criticism appeared in an occupational health report that served to place on record Ms Hogger’s Attention Deficit Hyperactivity Disorder (ADHD), a condition that she had previously only mentioned to her line manager on an informal basis.
Ten months after the report, Ms Hogger resigned. She submitted claims for disability discrimination, disability related harassment and constructive dismissal just before the tribunal deadline. After a 5 day hearing, a number of her claims were upheld. The remedies hearing generated the newspaper headline “Woman with ADHD wins £35K after boss calls her ‘disorganised’”.
Let’s take a closer look at what influenced the tribunal’s decision. Prior to two acts in June and July 2023 that were deemed to comprise harassment, Genesis had not reacted to the OH report by making an ADHD coach available for Ms Hogger. This omission was deemed to have breached the duty to provide reasonable adjustments.
The June act of harassment comprised a line manager’s observation that Ms Hogger’s failure to turn up to an in person client meeting in time, and her apparent use of office hours to go for a massage, to Starbucks or the supermarket, could lead her colleagues to think she was “disorganised or uncommitted”.
The July act followed Ms Hogger turning up late and in a dishevelled state to a client event. Genesis reacted by initiating a performance improvement programme. Ms Hogger resigned the next day.
In the eyes of the tribunal, the first act directly arose from Ms Hogger’s disability, and served to violate her dignity and create an adverse environment: the “disorganised or uncommitted” comment highlighted a negative aspect of her disability, because her behaviour arose from her ADHD.
As to the second act, imposing the PIP, this was found not to comprise harassment. However, it was considered to be a disproportionate approach to performance issues without reasonable and proper cause, thereby amounting to disability discrimination.
Despite the newspaper headline, the award was not £35,000 for being labelled as disorganised. There was a combined basic award and loss of rights award, for the constructive dismissal, of around £3,000. Just over £10,000 was awarded for losses attributable to discrimination, with £17,500 on top for injured feelings. The balance comprised interest.
Does this mean that ADHD and its symptoms are always going to trump employers’ concerns over capability and conduct? Not necessarily. Everything will remain fact specific. Whether on this occasion Genesis may seek to appeal, on the grounds that too high a burden had been placed upon them, is another matter. In the meantime, the only sensible step that employers of ADHD diagnosed employees can take is likely to be a very careful one indeed.
Is this a live issue in your workplace? Might you need guidance on how best to stop anything of this nature escalating? Get in touch. Contact David Cooper via david@wolverhamptonemploymentlaw.co.uk or on 07450 350715.
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