ADHD is not automatically a disability under the Equality Act 2010 but it may meet the section 6 definition of disability if you can show that it –
- Is an impairment (you are likely to succeed on this);
- Is long-term (also likely to succeed depending on when you and your employer became aware of your diagnosis);
- Substantially impacts you (the area most likely to be contentious although the bar is low here – substantial means more than minor or trivial); and
- Impacts your day to day activities. It is incumbent on you to show the way your ADHD impacts you and for a tribunal judge to assess whether this meets the statutory definition of disability.
It will not automatically assist you in proving that your ADHD is a disability if you take medication to treat it although remember that when assessing whether it is a disability you must discount for the medication. How would you be able to function if you were not medicated is what the Employment Tribunal wants to know. Remember also that it is not only medication that must be discounted. Many people with ADHD will have other coping mechanisms and auxiliary aids to help them overcome any disadvantages and these too must be ignored for the purpose of the legislation. The more mechanisms you have in place the more likely you are to be able to demonstrate that your ADHD is a disability and that you qualify for workplace protections such as reasonable adjustments.
There is considerable scepticism about ADHD and other neurodiverse conditions in the workplace and wider society. There is a lot of noise in the press about how the middle- classes are paying to explain their differences and to get a label attached to them. It is quite common however that many conditions have gone unchecked for a long time without being diagnosed and it can come as a huge relief to people who have known that something was not quite right but not been able to put their finger on what it was. Some people will describe their ADHD as a curse, others a superpower. Its both a question of degree and perception but ADHD need be no barrier to success.
If you want your employer to put in place reasonable adjustments they need to know that you have ADHD. You do not need to disclose this to work colleagues or even your direct line manager provided someone in the organisation has knowledge. Most commonly this will be someone in HR but in a smaller organisation it could just be your boss. You can ask the person you tell to keep this information confidential and they should: this is sensitive personal information for data protection purposes and they are not at liberty to share it with anyone without your consent. Your employer may want you to be assessed by Occupational Health if you disclose your ADHD: do not be afraid of this. The medical professional has a duty of confidentiality and is equally not at liberty to share any information with your
employer without your consent. On the contrary having the backing of OH when you raise a request for adjustments can only be a good thing.
Assistance is available to employers who are obliged to make reasonable adjustments for ADHD. It is slow but it does work. You can read more about the involvement of Access to Work here. It may be that if you are a small organisation and no help is available from AtoW you are not required to make adjustments if they are not practicable or if the cost is prohibitive. Reasonable adjustments are only required if they are reasonable.
The Equality and Human Rights Commission Statutory Code of Practice on Employment is particularly helpful in understanding the right to request and the rights on employers to provide reasonable adjustments. Chapter 6 from page 78 onwards is where you need to look in the EHRC Code.
