Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Stedman and Haven Leisure Limited, in which the Employment Appeal Tribunal was asked to consider whether a tribunal failed to properly assess whether a neurodiverse job candidate was disabled and gave some guidance on the legal implications of a neurodiversity diagnosis. To qualify as a disability, the mental or physical impairment an individual suffers must have a substantial and long-term adverse effect on their normal day-to-day activities, which goes beyond the normal differences in ability which exist between people. In this case, a job applicant brought a disability discrimination claim after he unsuccessfully applied for a vacancy as an animation host with one of the UK's largest caravan holiday providers. The applicant has formal diagnosis of autism spectrum disorder, ASD, and attention deficit hyperactivity disorder, ADHD. A preliminary hearing took place to determine if the applicant was disabled. The Employment Tribunal held that he was not disabled, mainly focusing on what he could do, such as gaining a degree and undertaking public performances, rather than on the effects his neurodiversity had on his day-to-day life. The applicant successfully appealed. The Employment Appeal Tribunal held that the tribunal had been perverse to rule that he was not disabled. It found that when assessing whether the applicant had a disability, the tribunal had failed to bear three basic principles in mind. The first being it is sufficient if the claimant has a mental or physical impairment that has a substantial, more than minor or trivial, adverse effect on just one day-to-day activity. The second principle being that the tribunal must not weigh what a claimant cannot do against what they can do, either with reference to a single activity or generally in relation to all day-to-day activities. And the third, in judging whether the adverse effect is substantial, the comparison is between the claimant as they are and as they hypothetically would be without the impairment. Further, the Employment Appeal Tribunal also gave some non-binding guidance on the legal impact of a neurodiversity diagnosis. The Employment Appeal Tribunal considered that a formal diagnosis of ASD or ADHD is not to be regarded only as constituting an impairment for the purposes of the definition of disability. The diagnosis reflects a clinician's professional opinion that the individual has significant that is more than minor or trivial, difficulties with the areas of functioning covered by the clinical diagnosis. Unless there is some reason to doubt the reliability of that clinical judgment, the formal clinical diagnosis of ASD or ADHD is a relevant factor that the tribunal must consider when assessing whether the impairment has a substantial adverse effect on the individual. Although the non-binding guidance given by the Employment Appeal Tribunal technically relates only to ASD and ADHD, because those are the impairments the claimant in this case was diagnosed with, it seems likely that the underlying principle would be equally applicable to other diagnosed forms of neurodiversity such as dyslexia, dyscalculia and dyspraxia, as these also reflect a clinician's opinion of the effect the neurodiversity has on the individual's functioning. Look out for further episodes in this series to stay up to date on all things HR and employment law related.