Disability Feedback Improves The Workplace

Landmark Ruling: Criticising Messy Work Is Not Unlawful Harassment

An employment tribunal in London has determined that providing an employee with feedback about untidy work does not meet the legal standard for harassment. The ruling underscores the necessity for managers to address performance weaknesses to foster improvement.

A recent decision from a London employment tribunal has brought clarity to the fine line between performance management and workplace harassment. The panel concluded that when a manager identifies an employee's work as messy and containing mistakes, it does not mean the manager is committing harassment. A judge on the panel stressed that a crucial function of management is to highlight areas where a worker's performance is lacking to help them improve. The tribunal also stated that for an individual to perceive such feedback as discriminatory is unreasonable.

This significant judgment originated from a legal case involving a human resources manager, Thomas Shevlin. He reported feeling deeply distressed, injured, and extremely unsettled after his supervisor, Rebecca Roycroft, critiqued his work. She had described it as messy and in need of enhancement. Mr. Shevlin contended his ADHD was the root cause of any errors. He subsequently leveled accusations of harassing and discriminatory behavior against her. The panel, however, did not concur with his assessment.

The Heart of the Case

The case centred on feedback given to Thomas Shevlin. He began working as a senior HR operations manager with the publishing company John Wiley & Sons in May 2022. One year later, during a May 2023 evaluation of his progress, his manager Rebecca Roycroft noted her observations in writing. She pointed out that when Mr. Shevlin was particularly busy, he was inclined to hurry, which resulted in typographical errors, incorrect use of capital letters, and sentences that were nonsensical. She explained that while she was generally understanding, she was concerned about the negative effect on his professional image when corresponding with international partners, as it could be perceived as "messy work."

Mr. Shevlin, who possessed traits of both ADHD and dyslexia but had not revealed this to his employer, left his role after finding new employment. He then initiated legal action against John Wiley based on a claim of disability discrimination. He argued that Ms. Roycroft's comments were the catalyst for his departure. The tribunal found this unlikely and ultimately dismissed his claims.

The Tribunal's Reasoning

Employment Judge David Massarella articulated the panel’s decision, explaining that producing official materials with spelling and grammatical mistakes is, by its nature, a shortcoming. The judge expressed satisfaction that Ms. Roycroft's intention was solely to assist Mr. Shevlin in improving and to address a small deficiency in his work.

The tribunal considered Mr. Shevlin's strong emotional reaction and resulting sense of being wronged was an unjustified response to what they described as "anodyne comments." The judgment clarified that, in their view, he did not experience any adverse action. Judge Massarella also noted a key risk for all supervisors: when a manager cannot be direct about a performance shortfall, there is a chance the employee will not absorb a well-intentioned caution.

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Understanding Harassment in UK Law

The Equality Act 2010 provides the legal framework for harassment claims in the United Kingdom. Harassment is defined as unwanted conduct related to a protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. The protected characteristics include age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

For a claim to succeed, the tribunal considers the victim's perception, the specific circumstances of the case, and whether it is reasonable for the conduct to have had that effect. A person's reaction is unlikely to be deemed reasonable if it is considered hypersensitive. In Mr. Shevlin's case, the tribunal concluded that his manager's remarks fell far short of the "very high threshold for harassment."

Disability and the Workplace

Disability is a protected characteristic under the Equality Act 2010. A person is considered disabled if they have a physical or mental impairment that has a "substantial and long-term adverse effect" on their ability to carry out normal day-to-day activities. This can include neurodivergent conditions. Employers have a legal duty to make reasonable adjustments for disabled employees to ensure they are not at a substantial disadvantage. This duty arises when the employer knows, or could reasonably be expected to know, about the disability.

In this instance, Mr. Shevlin had not disclosed his condition to his employer. Furthermore, the tribunal was not satisfied that he had demonstrated a causal connection between his ADHD diagnosis and the spelling and grammatical errors in his work. This lack of connection was a pivotal factor in the ruling.

The Challenge of Neurodiversity in Employment

Neurodiversity refers to the natural variations in human brain function, covering conditions which include autism, ADHD, and dyslexia. It is estimated that around one in seven people in the UK are neurodivergent, representing a significant portion of the workforce. However, this talent pool is often overlooked, with systemic barriers hindering their full participation in employment. For example, only 16% of autistic adults in the UK are in full-time employment.

Many neurodivergent individuals possess skills in high demand, such as creativity, pattern recognition, and problem-solving. Companies like JP Morgan have reported that neurodivergent employees in their 'Autism at Work' program can be significantly more productive than their neurotypical peers in certain roles. Tapping into this potential requires creating inclusive environments that support different ways of thinking and processing information.

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The Manager's Role in a Neuro-inclusive Workplace

Managers play a critical role in fostering an inclusive culture. This includes being mindful of how they communicate and provide feedback. Recent tribunal decisions have shown increased scrutiny of managerial behaviour towards neurodivergent employees. Actions like repeatedly sighing at an employee with ADHD have been found to constitute unlawful discrimination.

Effective management involves moving beyond a one-size-fits-all approach. Understanding individual needs and adapting communication styles are crucial. For neurodivergent employees, who may be more sensitive to criticism, feedback should be specific, data-driven, and focused on observable behaviours rather than abstract concepts. Creating a trusting relationship and providing regular, constructive check-ins can help neurodivergent individuals to thrive.

Reasonable Adjustments: A Cornerstone of Inclusion

The duty to make reasonable adjustments is a key part of supporting disabled employees under the Equality Act 2010. These are changes to the work environment or practices that remove or reduce a disadvantage related to a person's disability. Adjustments must be "reasonable," which depends on factors like the employer's size and resources, and the practicality of the change.

Examples of reasonable adjustments for neurodivergent staff can include providing noise-cancelling headphones, allowing flexible working hours, giving clear written instructions, or offering a quiet workspace. The key is to have an open dialogue with the employee to understand their specific needs and how they can be best supported.

The Impact of Non-Disclosure

An employee is not legally obligated to disclose a disability to their employer. Concerns about stigma, prejudice, or how the information will be received often lead to non-disclosure. A recent survey found that over half of young people with a neurodivergent condition would want to hide it during a job interview.

However, non-disclosure can create challenges. The employer's duty to make reasonable adjustments is typically triggered once they are aware of the disability. Without this knowledge, it becomes difficult for a manager to provide tailored support or to understand the root cause of performance issues, as was a factor in the Shevlin case.

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Feedback vs. Harassment: Striking the Right Balance

This ruling highlights a critical distinction for employers. Performance feedback is an essential tool for employee development. Harassment, on the other hand, is unlawful and creates a toxic work environment. The key difference often lies in the purpose and effect of the communication. Constructive feedback aims to improve performance and is delivered respectfully. Harassment, however, violates dignity and creates a hostile atmosphere.

For managers, the takeaway is the importance of clarity, intention, and professionalism. Feedback should be specific, objective, and linked to job expectations. Documenting performance conversations and the support offered can also be crucial. The goal is to create a culture where feedback is seen as a supportive mechanism for growth, not a personal attack.

The Cost of Getting It Wrong

While Mr. Shevlin's claim was unsuccessful, and he was ordered to pay £20,000 in costs to his former employer, disability discrimination claims can be costly for businesses. Employment tribunals can award significant compensation, and the reputational damage from a public case can be substantial. The legal process itself is time-consuming and expensive, with legal fees often running into tens of thousands of pounds.

Therefore, investing in training for managers on disability awareness, inclusive leadership, and how to conduct performance reviews sensitively is not just a matter of good practice; it is a vital risk management strategy. Proactively fostering an inclusive culture is the most effective way to avoid the pitfalls of discrimination claims.

Moving Forward: Building Inclusive Workplaces

The legal dispute involving Thomas Shevlin and his former employer John Wiley & Sons acts as a reminder of the complexities of managing performance in a diverse workforce. It affirms that managers can and should address performance issues directly. However, it also implicitly underscores the need for this to be done within a framework of fairness, respect, and awareness.

Creating workplaces where all employees feel valued and supported is paramount. This involves educating managers, encouraging open dialogue about disability and neurodiversity, and being proactive in offering reasonable adjustments. By doing so, businesses can not only comply with the law but also unlock the immense potential of a truly diverse talent pool.