Is ADHD a protected characteristic under the Equality Act 2010?

The recent case of  Ms M Hunter v North Lanarkshire Council: 8000621/2025 reaffirmed that ADHD can amount to a protected characteristic of disability, under s. 6 of the Equality Act 2010. The claimant Ms Hunter alleged constructive unfair dismissal, based on her ADHD as a disability, but the company did not accept that this was a qualifying condition. They argued that her ADHD did not have a long-term adverse impact on normal day-to-day activities during the material time of her employment.

The claimant is a qualified and practicing in-house solicitor who represented herself in the case. She alleged that her working pattern was significantly changed during her pregnancy; when she could not comply with the new pattern and her employer refused to accommodate her needs, she resigned. After the birth of her child, she began to take medication for her diagnosed ADHD, which was not possible during her pregnancy, to reduce the effect of the condition. From school age onwards, the claimant experienced a variety of debilitating symptoms which affected her work, including fatigue, impulsivity/recklessness, delayed speech, and a slowness to learn new skills due to poor working memory. Those symptoms became magnified when the claimant took on greater responsibilities associated with adulthood, according to her impact statement.

The respondent alleged that Ms Hunter’s evidence was insufficient, inconsistent, and related to periods outside of the material time

The Decision: As per the Employment Appeal Tribunal case of Goodwin v Patent Office, when determining disability tribunals should approach four key questions, with the onus on the claimant to establish that each factor was present at the material time:

  1. Does the claimant have a physical/mental impairment? (impairment commonly being understood as a reduction or weakness in a particular thing)
  2. Does the impairment have an adverse effect on ability to carry out normal day-to-day activities?
  3. Is the effect substantial?
  4. Is the effect long term? (at least 12 months)

As it is the unique impairment itself that is considered by the tribunal, one person’s ADHD might amount to impairment in the eyes of a tribunal where someone else’s wouldn’t. The ordinary definition of impairment is used, constituting a reduction or weakness in a particular area.

In this case it was deemed that sufficient evidence provided by the claimant showed a mental impairment, including her diagnosis from a qualified and experienced professional, and her breadth of continuous and debilitating symptoms outlined in her impact statement. Her ability to carry out normal day-to-day activities was affected by her condition, which was substantial enough to require coping mechanisms and medication to function.

Key takeaways: Of the four criteria for disability, the most contentious factor is said to be the condition having a ‘substantial’ impact. Even the fact that you take medication for your ADHD is not enough to prove substantial impact, albeit medication and other auxiliary aids are of course discounted when determining disability, and more specifically, ADHD. There is not a great deal of cases revolving around ADHD as a disability, but this case from last year involved an employee discriminated against due to both ADHD and PTSD, and resulted in an award of £4.5 million. This remains a developing area to watch out for in the employment sector.

If you have any questions regarding disability under the Equality Act 2010, please do not hesitate to get in touch with a member of our Employment Team at employment@mcmsolicitors.co.uk

Failed to follow procedures before a dismissal?

Despite the employee having admitted to making sexual remarks towards his female colleague, the lack of procedure led to an unfair dismissal finding in the recent case of Nafayeh v Barclays Bank Plc.

The Glasgow Employment Tribunal heard that the Claimant allegedly made a series of sexually inappropriate comments toward a younger female colleague. including, “what’s the youngest a 40 year old can go with?”

When spoken to as part of the investigation into the allegations, the Claimant admitted to making the above comment however, denied making the other comments as alleged. Despite this, the investigating officer recommended that matters proceed to a disciplinary hearing. The Claimant was subsequently invited to a disciplinary hearing on 1 March 2024, with the invitation outlining three allegations of the Claimant making inappropriate comments toward his colleague and warning that one possible outcome could be his dismissal.

On 22 July 2024, the Claimant was notified in writing of his dismissal.  The Tribunal noted that there was no “sufficient explanation” for this delay and that no further investigations took place during that time. Additionally, the dismissal letter referenced five proven allegations of misconduct (all alleging the Claimant had made different inappropriate comments) however, the Claimant was only given the opportunity to respond to three of these allegations at the disciplinary hearing (and notably, one of the allegations put to him at the hearing had not been previously raised with him).

The Claimant appealed his dismissal on eight grounds, including concerns about the flawed investigation and that the “dismissal had been based on probability and not fact”.  The appeal officer acknowledged that some of the allegations had been “expanded without warning” but did uphold the dismissal, stating it was “justified” on the basis that the comments were fundamentally inconsistent with the Respondent’s standards.

The Tribunal held that the disciplinary process was “seriously flawed” and that no reasonable employer would have dismissed the Claimant in those circumstances. The Judge found that the investigation was not thorough enough given the seriousness of the allegations, and that the Respondent was obliged to investigate potentially exculpatory factors as well as factors pointing toward guilt, which it failed to do. They also found the disciplinary outcome was unnecessarily and unfairly delayed, and that it was unreasonable to find the Claimant guilty of allegations that had not been identified prior to the hearing. Although in some cases procedural defects can be remedied at the appeal stage, the Tribunal held that this had not been done here.

Although the Claimant’s unfair dismissal claim succeeded, the Tribunal reduced his compensation by 15% for contributory fault and 50% to reflect the fact that he’d have been dismissed by the same date were the process conducted fairly.

This case serves as a reminder to employers of the importance of conducting a full and fair process when considering dismissal, even where there is a potentially fair reason to do so, in order to avoid a finding of unfair dismissal being made. In particular, employers should:

  • Ensure that they carry out a thorough investigation and consider all evidence, including exculpatory evidence;
  • Thoroughly consider witness evidence and re-interview where more detail or clarification is required, especially where their accounts are crucial in determining the outcome;
  • Ensure disciplinary invitation letters are well drafted and fully encapsulate all of the allegations to be put to the employee;
  • Ensure that disciplinary processes are carried out without unreasonable delay (and ensure any delays are justifiable and explained to the employee); and
  • Ensure appeal processes are conducted fairly and that the employee’s grounds of appeal are properly considered.

Allegations of sexual harassment can be challenging for employers to deal with and, whilst employers should always ensure these are treated with the utmost seriousness and sensitivity, it is still vital that they ensure a full and fair process is followed. Separately, employers should also be aware of their obligation to take measures to proactively prevent sexual harassment in the workplace.

If you have any queries or concerns regarding this case or would like to discuss its implications (or if you are seeking guidance on the new proactive duty to prevent sexual harassment) please do not hesitate to get in touch with Laura McKenna or I for a confidential chat.

Update on the Employment Rights Bill

On the 16th July, the House of Lords voted in favour of several notable amendments, one of which was retaining a qualifying period for unfair dismissal, albeit shortened compared to the existing regime under the ERA 1996. Previous drafts of the bill removed the two-year qualifying period entirely, but the Lords have now agreed upon a period of 6 months to avoid a “perverse effect” on job creation made by a “day one” qualifying period. Retaining a six-month qualifying period allows employers sufficient time to assess new employees without amounting to a “disincentive to hire”. They must achieve balance between administrative burdens on employers and maintaining the rights of employees.

Changes to zero hour contracts are also expected in the Bill; the Lords agreed to amend the Bill to require the government to consult with SMEs all over the UK on this issue, among others. The government has opined that employees should have the right to remain on zero-hour contracts if they wish, but also that these contacts should not be exploitative.

According to legal commentators, the nature of the bill as a manifesto commitment means the government will likely seek to achieve royal assent as soon as possible. Time will be set aside for the Bill to pass through parliamentary ping-pong, before the Labour Party Conference on the 28th of September.

The House of Lords will conduct a 3rd Reading of the Bill on the 3rd of September 2025: watch this space!

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