Protected characteristics – always a balancing act 

November 15th, 2023

We have seen increasing numbers of clients come to us having been diagnosed with ADHD/ASD in later life. It can be a real struggle getting employers to understand how neurodivergence impacts an individual and to get reasonable adjustments implemented.  

This can be particularly tricky if someone has been managing their work adequately for some time but, on receiving a diagnosis, then realises they need (and may be entitled to) more support. We often find that employees may have been exhibiting signs of being neurodivergent but employers may not notice or may notice but need something ‘official’ from Occupational Health before they provide assistance.

One thing I have noticed in practice is that there is a balance to be struck between supporting employees with neurodivergence which can impact behaviours and interpersonal skills and the needs/characteristics of colleagues.  This is where we look at the balancing of rights under the Equality Act 2010 (the Act).  

On the face of it all, protected characteristics are equal and each worthy of protection in their own right. That is until they are not, or there is a friction between differing categories of protected people. I give one example here to illustrate the point.

You have a senior manager who has ADHD/ASD and struggles to understand their behaviours and how they may impact on others. Comments might be made that are ‘unfiltered’ and which to others could border on being offensive or inappropriate. This conduct then strays into sexual harassment of a more junior colleague as comments are made that are of a sexual nature that cause offence and which could create a hostile working environment.  

There is no malice intended but the junior colleague reports the fact that these comments have been made and that they are struggling to deal with them in the workplace. An investigation is undertaken into the comments that have been made and a disciplinary case to answer is found. The response, from the more senior member of staff with ADHD/ASS, to the allegations against them is that by virtue of their ADHD/ASD they find it difficult to understand ‘right from wrong’ in an employment context and what may or may not be considered offensive.  

So how does an employer move forward? On the one hand, you have a senior employee potentially with a disability that is afforded protection from discrimination under the Act and a junior employee who is complaining of sexual harassment and sex discrimination, also protected under the Act.  

For me the answer is simple. Whilst you can make reasonable adjustments for the senior manager, there is a wider issue where an employer is expected to take all reasonable steps to avoid its employees being harassed. If those steps are not taken, a bigger issue arises and the business and its staff are exposed to risk. 

In such circumstances I think an employer is objectively justified in taking action against the senior manager irrespective of the disclosed disability/neurodivergence if the conduct complained of is so serious and damaging to both the harassed individual and the business.  I cannot see how any Tribunal would see that by disciplining someone senior, irrespective of their neurodivergence, for inappropriate sexual comments made to a junior female colleague, would not be objectively justifiable.  It is simply not the case that conditions such as ADHD/ASD can be used as a shield against poor behaviour that has the ability to seriously impact others. 

Any workplace is made up of a myriad of people with protected characteristics and employers have to work increasingly hard to ensure all of these characteristics are protected, but within reason and not to the detriment of others.

There is absolutely no intention within this blog to assert that employees with ADHD/ASD cannot manage their behaviours. The example provided is simply to illustrate my point about balancing rights and how this must be managed in the workplace. 

This blog was written by Elizabeth McGlone, Partner at didlaw

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