ADHD, neurodiversity, the disciplinary process and reasonably adjustments – what employers must remember

The case of Toghill v Lidl remains one of the most significant Employment Tribunal decisions concerning ADHD and the disciplinary process. Although the Tribunal recently issued a minor correctly judgement of an administrative nature, the substantive findings and lessons arising from the case remain unchanged and provide important guidance for employers.

The Claimant was dismissed for gross misconduct after using a powered pallet truck, despite instructions not to do so without authorisation. The Claimant argued that informal use of the equipment was commonplace and that his ADHD affected his communication, memory, concentration, processing speed and responses during the disciplinary process.

The Tribunal accepted that the employer was entitled to treat the use of the powered pallet truck as a serious matter; however, found that the Respondent had unfairly dismissed the Claimant and failed to make reasonable adjustments during the disciplinary process.

The Tribunal confirmed that the Respondent had not properly considered the impact of the Claimant’s ADHD, had failed to adequately follow its own disciplinary procedure, had not sufficiently considered alternatives to dismissal and failed to make reasonable adjustments during the disciplinary process. The Claimant was awarded £45,147.24.

This case has highlighted key points for employers to consider.

Employers must;

• Ensure that disability-related misconduct is properly investigated before any decision to dismiss is made.
• Follow their own disciplinary procedures and recognise that a fair process is still required, even where misconduct is admitted. Employers should also remember that documentation and contemporaneous records can significantly influence Tribunal findings.
• Recognise that the duty to make reasonable adjustments applies to disciplinary and grievance procedures, not just day-to-day working arrangements.
• Understand that knowledge of an employee’s disability creates active obligations on managers and HR to consider appropriate support and adjustments.
• Ensure there is consistency between formal policy enforcement and actual workplace culture and practice.
• Meaningfully consider alternative sanctions before deciding that dismissal is appropriate.

For advice on disability discrimination, reasonable adjustments or fair disciplinary procedures, get in touch with our Employment Law team.

This article was written by Gabrielle Scriven.