A worker was subject to disability discrimination after his manager repeatedly sighed and made ‘exaggerated exhales’, an employment tribunal has found.
In a further tribunal case that brings into question how employers deal with neurodiversity, employment judge Raynor ruled that Robert Watson was discriminated against under sections 15, 20, 21 and 26 of the Equality Act 2010. However, his claim for unfair dismissal and several other counts of discrimination against his employer, Roke Manor Research, were dismissed.
The tribunal, held in Southampton, 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. He also had difficulty focusing and often appeared distracted – symptoms later linked to his ADHD, which wasn’t diagnosed until November 2022.
On 29 September 2022, Watson had raised with his line manager the possibility that he may be neurodiverse, which explained some of his difficulties in the workplace.
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.
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The judge heard that between 28 November and 15 December 2022, DT, both in front of colleagues (the other five members of Watson’s team), and on a one-to-one basis, questioned Watson’s working hours and patterns, and the time spent at his project desk. DT “expressed non-verbal frustrations such as sighing and exaggerated exhales”.
On 15 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.
He used the phrase “putting your ADHD aside for a moment”, which to the judge showed a disregard for the need to accommodate Watson’s ADHD.
DT added: “I feel you are becoming a net detriment”, which disparaged Mr Watson’s work performance, the judge said. 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,” the tribunal noted.
Unlawful discrimination
Judge Rayner ruled that the sighs and gestures amounted to unlawful discrimination linked to Watson’s condition. “I conclude the reason for the expressions of frustration arose from things which themselves arose from Mr Watson’s disability such as his time-keeping and working patterns and the fact that he was spending time away from his project desk,” she said.
“I accept 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.
“Whilst this does not excuse DT’s behaviour or treatment of [Mr Watson], it does explain it.”
The judge ruled that had Roke Manor Research “taken steps to identify adjustments required for the claimant 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.”
Compensation for Watson will be decided at a later hearing.
Lawyer’s comment
Liz Stevens, professional support lawyer in the employment team at Birketts, pointed out that the case was another that revealed employers’ difficulties with dealing with neurodiverse-related disabilities. She said: “As this case demonstrates, 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 factor that resulted in the tribunal’s conclusion that the claimant had been discriminated against and harassed – but it is clearly one that appeals to the headline writers. The judgment sets out details of multiple acts of discrimination and harassment that were held to be well-founded (as well as others that were not).
“In particular, the respondent had failed in its duty to make reasonable adjustments following the claimant’s diagnosis of ADHD. It is clear that the claimant’s manager was frustrated by his 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.”
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