Roberta Ghiotto v Hawkwell House Hotel Limited 6009226/2024
The Claimant was employed as a Talent and Culture Coordinator. As well as performing general HR duties, she was responsible for the monthly collation of payroll data.
The Claimant suffered from ADHD (but did not have a formal diagnosis) and found the payroll aspects of her role particularly challenging. The Tribunal found that her employer was aware of her symptoms of this condition and that it adversely impacted on her focus, attention to detail and time management. This became exacerbated when working in busy or noisy environments, including shared office spaces.
In a probationary review meeting in February 2024, the Claimant’s Manager raised a series of, what he considered to be, mistakes in her work. These issues related to the payroll aspects of her duties.
The Tribunal found the probationary review meeting was “unduly hostile and aggressive” and focused on criticisms of the Claimant without seeking to identify appropriate training opportunities or make any constructive suggestions to help her. Instead, the Claimant was told to focus entirely on payroll duties for several days and that her Manager would cover the other aspects of her role. The Claimant was given a 4-day window to complete her payroll duties for that month and told that a further meeting would be held to review the work she had undertaken. The Claimant was told she could work on these tasks in a separate room due to her concentration difficulties in a shared office environment. This “room” amounted to a former cupboard on a different floor to the main office without a telephone line or window.
The Claimant alleged, and the Tribunal agreed, that in restricting her duties to those relating to payroll, she was being “set up to fail”. The Tribunal specifically found that all her duties which she enjoyed and was successful at were deliberately removed and that her employer insisted she worked only on the task she struggled with most, without providing additional training or support. All of this was compounded by placing the Claimant in an isolated and unsuitable room, purportedly to help her concentration.
At a meeting on 21 March 2024, the Claimant’s Manager asked whether she had a formal diagnosis of ADHD. When she said she did not, he asked whether the condition was on her “charts” and if so, whether it was “clear”.
The Claimant was dismissed a day later. The letter of dismissal made no reference to the fact of her suffering from ADHD. The Tribunal awarded the Claimant just over £200k after upholding her allegations of disability discrimination.
Key Takeaways
1. A formal diagnosis is not necessary in order that a medical condition qualifies as a disability under the Disability Discrimination Act 1995. The Act states that a person is disabled if they have “a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
In the above case, it appeared the Claimant’s Manager took advice from an HR colleague and was advised to find out whether the Claimant had a formal diagnosis of ADHD and if not, that it was safe to dismiss her. This is incorrect. The lack of requirement for a formal diagnosis was addressed by the Northern Ireland Court of Appeal in Peter Kelly v 1. Department for Communities 2. Department of Finance [2023] NICA 91. At paragraph 42 of the Judgment, the Court stated:
“In the field of disability discrimination the jurisprudence could not be clearer, one has to look to the symptoms of the disability and not focus on the label. The job of the Tribunal is to look at the effects of the impairment on the ability to carry out the day-to-day activities listed in the Act. It is a legal and not a medical test.”
2. Once disability is established, an employer is obliged to turn their mind in a genuine and meaningful way to the issue of reasonable adjustments. In the above case, the Tribunal was, unsurprisingly, very critical of the employer and held they failed in that duty. What is reasonable is an objective test but relevant factors are likely to include; the effectiveness and practicability of a particular adjustment, the extent of the employer’s financial or other resources and the type and size of the employer.
3. Employers should also consider seeking medical input, usually from an Occupational Health provider, at an early stage when dealing with issues of disability discrimination.
If you are an employer and require advice about your obligations under the Disability Discrimination Act 1995 or advice on any other employment law matter, please do not hesitate to get in touch with our employment law team.
