A worker was subject to disability discrimination after his manager repeatedly sighed and made ‘exaggerated exhales’, an employment tribunal has found.
In a ruling that could reshape how employers address neurodivergence in the workplace, a UK employment tribunal has found that even nonverbal expressions like sighing can amount to disability discrimination. The ruling underscores growing expectations for empathy and inclusive management as our workforces become more neurodiverse.
The tribunal heard that Watson joined the firm (which developed the Hawk-Eye ball tracking system in sport) in August 2020 as a software engineer but struggled with:
• poor timekeeping
• focus
• routine
Two years later, in November 2022, he was diagnosed with ADHD – all of the above symptoms were linked to that diagnosis. Watson had, however, raised with his line manager in September 2022 the possibility that he may be neurodiverse, which might explain some of his difficulties in the workplace, but no adjustments were made.
After returning from four days off sick following his ADHD diagnosis, Watson was confronted by a project leader (referred to only as DT because of national security concerns around the firm’s defence projects) both in front of colleagues and on a one-to-one basis. DT questioned Watson’s:
• working hours
• his work patterns
• the time spent at his desk
DT also expressed non-verbal frustrations such as sighing and exaggerated exhales and used the phrase ‘putting your ADHD aside for a moment’, telling Watson that he was ‘becoming a net detriment’ both of which the tribunal held as evidence of a blatant disregard to accommodate Watson’s ADHD.
In December 2022, at a one-to-one meeting, after Watson explained to DT how his comments and behaviour were making him feel anxious and stressed, DT stated that his comments had been designed to put pressure on Mr Watson.
The tribunal held that the comments used by DT, the project leader, clearly disparaged Mr Watson’s work performance. Watson was warned over his sickness absences and was eventually dismissed in early 2024 after a protracted period of sick leave for stress.
The judge found that the company had fairly dismissed Watson, but accepted the effect DT’s behaviour had had on Watson’s mental health. Reactions from others verbally or as a gesture, can have a damning effect on self-esteem and anxiety.
Unlawful discrimination
The tribunal ruled that the sighs and gestures, and more extensive comments and criticisms, amounted to unlawful discrimination linked to Watson’s condition. The tribunal concluded as follows:
• the reason for the expressions of frustration arose from things which themselves arose from Mr Watson’s disability such as his timekeeping and working patterns and the fact that he was spending time away from his desk
• it was accepted that for DT there was a genuine source of pressure and frustration, and that the reason for that frustration was that in the autumn of 2022, Mr Watson was not able to fully contribute to the project work and that this had a knock-on impact on DT who was expected to pick up any slack
• it was accepted that whilst this does not excuse DT’s behaviour or treatment of Mr Watson, it does explain it
• the tribunal held that had the employer taken steps to identify adjustments required for the employee at an earlier stage and provided both him and the project lead with necessary support, it is entirely possible that DT would not have himself suffered with such work pressure and it is possible therefore that this discrimination would have been avoided.
Summary
• This is another case that revealed employers’ difficulties with dealing with neurodiverse-related disabilities.
• An employment tribunal will consider evidence of non-verbal behaviours alongside documentary evidence in forming a complete picture of the events in question.
• The manager’s ‘sighing’ here was just one of many acts of discrimination and harassment that were held to be well founded and resulted in the tribunal’s conclusion that the claimant had been discriminated against.
• The employer had failed in its duty to make reasonable adjustments following the claimant’s diagnosis of ADHD.
• It is clear that the employee’s line manager (DT) was frustrated by Watson’s behaviour and didn’t fully understand or appreciate the impact of his disability, which highlights the importance of training in managing disabilities and particularly in understanding neurodiversity.
Conclusion
Employers need to embrace neurodiversity in the workplace as it brings numerous benefits – one of the biggest benefits being that neurodivergent individuals often bring fresh perspectives and innovative ideas to the table. Furthermore, neurodivergent employees often possess the ability to hyperfocus and produce super detail-oriented thinking. Finally, neurodiversity can foster a more inclusive and welcoming workplace culture, leading to better employee retention and a stronger company reputation.
For any questions or assistance email nicola.goodridge@goodhr.co.uk or call +44 7917 878384