Employee with ADHD fairly dismissed after making threats

The Bristol Employment Tribunal have ruled that an apprentice employee was neither unfairly dismissed nor discriminated against on the grounds of his disability after being sacked for making threats to colleagues.

The facts of the case

The claimant began employment with the respondent in 2020 as an apprentice technician. The respondent’s contractual documents stipulated that apprentices were expected to behave responsibly and uphold high standards of behaviour.

It was accepted that the respondent was aware at all times that the claimant had ADHD, and that his condition was likely to meet the legal definition of disability.

The claimant had previously received a final written warning for grabbing a colleague by the collar and holding on to him after the colleague had tampered with one of his tools by wrapping it in electrical tape.

The final written warning stipulated that in the event of future conflict with colleagues, he should raise issues with his supervisor or the person involved calmly and professionally.

A further incident occurred where the claimant’s lunch was sabotaged. His crisps were crushed, holes poked through his sandwiches, and everything had been sprinkled with tea leaves, rendering it inedible.

The claimant immediately blamed another colleague and began messaging him and other colleagues about the incident. The claimant messaged the colleague he believed was responsible several times, threatening to damage his property in retaliation and making other threats. He also directly challenged other members of staff the following day in an aggressive manner.

The respondent began an investigation into the threatening conduct. During the investigation process, the claimant claimed that impulsivity was a symptom of his ADHD and that this had contributed towards his behaviour.

The respondent sought an Occupational Health Report, which agreed that the claimant did have impulsive tendencies linked to his ADHD, but did understand right from wrong.

The respondent decided to dismiss the claimant on the basis that he had sent several threatening messages over a period of time to several people, and this did therefore not appear to be impulsive. They were also not confident that the claimant would not react in that manner in future.

Conclusion

The Tribunal found that within the internal process and in the Tribunal the Claimant had not adduced medical evidence directly on the point of whether his behaviour was a consequence of impulsivity caused by ADHD. However, they did accept that there was a loose causal connection between his behaviour and his ADHD.

However, they found that the decision of the respondent to dismiss was a proportionate means of achieving a legitimate aim, protecting staff from aggressive and threatening language. They found that the threats were serious and likely to alarm recipients, and that the claimant should have found ways to self-manage impulsivity caused by his condition.

The claimant had already been given a second chance after a previous gross misconduct issue that could have resulted in dismissal, and a lesser sanction would not have met the aim of protecting other staff. The respondent, therefore, also had a fair reason to terminate the claimant’s employment.

Practical lessons for employers

While this decision is not binding on other Employment Tribunals, there are some helpful lessons here about how to best manage a neurodivergent employee. These include:

• Setting clear expectations with all employees about the standards of behaviour you expect.
• Being consistent in enforcing rules.
• Asking neurodivergent employees about their condition and how it affects them. Seek their permission to get a medical report if necessary, or request they share medical evidence with you about their diagnosis.
• It may be that neurodivergent employees need instruction or information in a particular form to assist their understanding and retention. Ensure you communicate your behavioural rules in a way that the employee is best able to retain.
• If behavioural issues are caused or exacerbated by a neurodivergent condition, are there recommended coping strategies or other support they can access to manage these.
• Support neurodivergent employees to implement their coping strategies.
• Provide management training to support staff in their day-to-day management of neurodivergent employees.