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What happens when an employee’s potential misconduct is linked to their neurodivergence?

05 October 2023

An autistic employee who was fired for sexual harassment after leaning against a female colleague and calling her ‘pretty’ and ‘priceless’ has succeeded in claims for indirect discrimination, failure to make reasonable adjustments, disability discrimination and unfair dismissal under the Equality Act 2010. This case illustrates the need to be sensitive to the nature of neurodiversity and the needs of neurodiverse employees, especially where their condition may impact their understanding of appropriate behaviour in the workplace.

The tribunal in J Clarke v Marks and Spencer plc confirmed the importance of making reasonable adjustments and the potential this has to prevent misconduct in situations where stress impacts neurodiverse employees’ behaviour. It also emphasised the need to have regard to the nature of an employee’s disability when carrying out misconduct investigations and when deciding whether to dismiss or not. Under s15 Equality Act 2010, disability discrimination arises where an individual ‘A’ treats a disabled person ‘B’ unfavourably ‘because of something arising in consequence of B’s disability’ and ‘A cannot show that the treatment is a proportionate means of achieving a legitimate aim’.

The tribunal found that Mr Clarke’s inappropriate behaviour was caused by his autism. The condition affected his ability to cope with changes in his routine, leading to uncontrollable emotions, and also impaired his understanding of social cues. At the time of the incident the claimant was distressed because his working patterns were irregular, and when he was distressed he would often lean on people, behaviour which he was unable to stop and which he did not understand was inappropriate. The tribunal noted that, during a previous period of time where his working patterns were made more stable to accommodate him, Mr Clarke worked without incident. Considering that reasonable accommodations of this nature could have prevented any further inappropriate behaviour, and considering the significant resources at M&S’s disposal, the tribunal concluded dismissal was not an appropriate response to the incident of sexual harassment.

The tribunal also found that M&S had not taken into account the impact Mr Clarke’s autism had on his intentions and understanding of the incident when deciding to dismiss him, meaning there were no reasonable grounds to believe the incident amounted to gross misconduct. Furthermore, Mr Clarke’s needs were not accommodated in the conduct of the investigation and dismissal proceedings, causing him significant disadvantage. As a result, the dismissal was found to be unfair.

This case raises several key issues for employers to be aware of. It is essential that the needs of all disabled employees, including those with conditions like autism, are take into account and reasonable adjustments made when necessary. An important point in this case was that, while a previous manager had been aware of and sympathetic to Mr Clarke’s condition, subsequent managers failed to maintain the adjustments put in place. Employers should ensure adequate communication between all people responsible for the management of disabled employees.

Employers should also consider taking occupational health advice when conducting disciplinary proceedings involving disabled employees to make sure the employee is not disadvantaged by the way proceedings are carried out, and to ensure any influence the disability may have had on the employee’s conduct is taken sufficiently into account when a decision is being made.

In conclusion, employers should always take care to understand and accommodate the needs of disabled employees, especially in cases where there are behavioural implications involved.

This article is not intended as legal advice. If you want to understand more about your obligations as an employer to disabled employees, or your rights as a disabled employee, under the Equality Act 2010, reach out to Hina Belitz and her team on the details below. We have been at the cutting edge of employment law for over 20 years and will continue to do so as the law develops. 

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