Neurodiversity and getting people disciplined

[ekm]

Hi everyone

I thought about asking this a few days ago and decided against it because I don't want to post anything too far away from the running a business theme, but I would love an employers opinion. This thread ( https://www.ukbusinessforums.co.uk/...o-bad-performance-mental-health.428070/unread) popped up which got me thinking about MH issues with work again, so thought I'd ask. Don't shoot me, this is taking courage

When you are doing an investigation into the conduct a member of staff, who has been diagnosed with mental health conditions, who is being assessed for further mental health conditions, and has been identified as disabled as per an OH referral by the companies OH team prior - is it okay to ask their colleagues doing interviewing (non-medical office role) to give an opinion if the persons way of working and conduct matches what they would expect from someone suffering the specific conditions they have claimed to have?

I'm looking at this from three potential angles - taking up medical matters with colleagues from a data privacy point of view, the validity of a non-medical opinion of a medical matter, and finally the impacts it might have on the employee whos medical matters was discussed with staff, who has had to see this play out in interview notes post-investigation with a view to any stigma or concerns of altered viewsreputation/etc they may come back to.

The second question I have is a bit of confusion I have with the equality act 2010, as the criteria for disability does not appear to need a formal diagnosis. However, the investigation does require the employee to confirm they do not have a neurodiversity diagnosis (anxiety and depression confirmed). There is a lot of confusion about what neurodiversity actually is, and whether it has to be formally diagnosed to be adjusted for. The employee has been described as disabled in OH reports due to their mental condition, , but not specifically for neurodiversity. The employee has always claimed to be neurodiverse, and has joined the company internal neurodiverse community, and throughout the year has asked reps within this group to contact management on his behalf to look into problems with the support provided. However, due to doubts about the employees genuinity with his mental state the employee has been asked during the investigation to confirm if they have been diagnosed as neurodivergent.


On a less health related note, how acceptable is it for a company, if management are made aware of concerns but decide to take no action (and opt not to even inform the person that a complaint has been made) to include these events into a dossier in order to prove a case against the employee. The timeframe between management decision of no initial action to presenting it to the employee is going to be just shy of a year.




I am coming at this from an employees perspective, but would love insight from an employers perspective. If you doubt the genuinely of someones neurodiversity in the face of OH guidance, how far would you push, how would you push, and how far back would you pull up 'previously closed' incidents to build your case, and would the employee making repeated requests for support (without response) change your view at all?

As always, devils in the details so I don't expect too specific thoughts, but I would love broad or otherwise opinions.

Thanks as always.

 

[NickZ]

If you can convince the management, organizing a office meet with every one and inviting a psychologist can get tings moving. Its a benefit for everyone, .

 

[ekm]

Thanks for your unique (and geniunely interesting idea). TBH following the above mentioned investigation process the company has committed to disciplinary action, we can float the idea, but I don't think it'd get very far.

 

[Newchodge]

is it okay to ask their colleagues doing interviewing (non-medical office role) to give an opinion if the persons way of working and conduct matches what they would expect from someone suffering the specific conditions they have claimed to have?

Never. How can their colleagues know what they should expect? Absolutely NEVER.

I find the rest of your post difficult to follow, but it sounds extremely worrying.

 

[Newchodge]

The second question I have is a bit of confusion I have with the equality act 2010, as the criteria for disability does not appear to need a formal diagnosis. However, the investigation does require the employee to confirm they do not have a neurodiversity diagnosis (anxiety and depression confirmed). There is a lot of confusion about what neurodiversity actually is, and whether it has to be formally diagnosed to be adjusted for. The employee has been described as disabled in OH reports due to their mental condition, , but not specifically for neurodiversity. The employee has always claimed to be neurodiverse, and has joined the company internal neurodiverse community, and throughout the year has asked reps within this group to contact management on his behalf to look into problems with the support provided. However, due to doubts about the employees genuinity with his mental state the employee has been asked during the investigation to confirm if they have been diagnosed as neurodivergent.

A person is disabled if they have a physical impairment that substantiually affects their normal day to day activities. A diagnosis helps but is not required. If an employee believes they have one conditiuon but actually have another it is completely irrelevant- they siffer froma an impairment that substantially affects their normal day to day activities.

What does this mean? However, the investigation does require the employee to confirm they do not have a neurodiversity diagnosis???? Who the hell do the investigators think they are?

 

[ekm]

Thanks for your replies, apologies if it's a bit vague but there is just so much if I wrote even a fraction here it would be ten pages and it's very hard to structure in a helpful way. I think as someone who runs a business its interesting to look at this in the employers perspective as Newchodge and other posters quite rightly has implied in other threads, employees often get the wrong end of the stick of what can and cant be done etc etc

But yes in the interview the employer acknowledged that the employee has anxiety and depression, and specifically asked if they had actually been diagnosed with neurodiversity, it was one of the formal interview questions

the colleagues have been canvassed, looking at the investigation notes (do you beleive in your opinion the employee under investigation exhibits symptoms of the condition they claim to have blah blah blah)

Another question I forgot to ask, and it is related - whilst I know employers can re-investigate closed matters of material new information is found, but if a manager has been made aware of a greivance, investigates it, decides no action (and doesn't even tell the person the greivance against) - would the company be looked on any differently in terms of how the matter is handled if they re-opened a year later without any change in facts as opposed to if they did a full investigation and escalation to disciplinary over this matter at the time it was reported?

It might not make sense but health aside one of my concerns is a manager opened and shut a colleague complaint feeling it without need for further action, but nearly a year later the employer has used this event as a primary allegation in the disciplinary invite. Apparently this was escalated by another manager who later heard about the incident 'and was angry on the employees behalf' (however this manage did not attempt to get the other side of the story and escalated to the top purely on hearsay, in fact I am not even sure he is aware it is an aged matter).


Who they beleive they are are? a primary private healthcare provider...

 

[Newchodge]

Thanks for your replies, apologies if it's a bit vague but there is just so much if I wrote even a fraction here it would be ten pages and it's very hard to structure in a helpful way

But yes in the interview the employer acknowledged that the employee has anxiety and depression, and specifically asked if they had actually been diagnosed with neurodiversity, it was one of the formal interview questions

the colleagues have been canvassed, looking at the investigation notes (do you beleive in your opinion the employee under investigation exhibits symptoms of the condition they claim to have blah blah blah)

Another question I forgot to ask, and it is related - whilst I know employers can re-investigate closed matters of material new information is found, but if a manager has been made aware of a greivance, investigates it, decides no action (and doesn't even tell the person the greivance against) - would the company be looked on any differently in terms of how the matter is handled if they re-opened a year later without any change in facts as opposed to if they did a full investigation and escalation to disciplinary over this matter at the time it was reported?

It might not make sense but health aside one of my concerns is a manager opened and shut a colleague complaint feeling it without need for further action, but nearly a year later the employer has used this event as a primary allegation in the disciplinary invite. Apparently this was escalated by another manager who later heard about the incident 'and was angry on the employees behalf' (however this manage did not attempt to get the other side of the story and escalated to the top purely on hearsay, in fact I am not even sure he is aware it is an aged matter).


Who they beleive they are are? a primary private healthcare provider...

The employee needs to join a union. They ,ay not be able to help about this, but they MUST join a union. UNISON, probably the best.

 

[Newchodge]

Many private healthcare providers, who are obviously only interested in profits, are USA based with USA attitudes to employment rights.

 

[ekm]

Haha I can't say the name, but they are very british. Don't want to say who - my social media is being monitored (my linkedin is going ping ping ping with manager views) so I wouldn't risk it.

Am a member of unison, following previous experiences but you know what? they have been downright useless. I managed to get a meeting with one but despite lots of followup emails I can't even get a response.

I have got a solicitor, problem is the expense so for simple questions I'm just trying to canvass people with experience, then at least I can go to my solicitor with something.

 

[Newchodge]

Haha I can't say the name, but they are very british. Don't want to say who - my social media is being monitored (my linkedin is going ping ping ping with manager views) so I wouldn't risk it.

Am a member of unison, following previous experiences but you know what? they have been downright useless. I managed to get a meeting with one but despite lots of followup emails I can't even get a response.

Don't speak to the branch. Speak to the Regional Head of Health.

 

[ekm]

That's a good shout, I'll look into that

 

[WaveJumper]

Well in my book it would appear the employers need to get some HR training ASAP

 

[ekm]

I've just been contacted by a recruiter, (because I don't know how I can go back in any event), and I applied for a few jobs over christmas, must be a small world - apparently people have talked between about my situation so now he (the recruiter) is enquiring about the circumstances.

It's very rare for recruiters to call you on sundays needing an urgent chat but there you go.

Can't get a breather here can I

 

[ekm]

Just to reply to the above, thanks everyone - I know you cant provide specifics as it's such a vague post and devils in the details but thanks for confirming my own sense of sanity about how wrong this is is not misplaced. I wanted to come from a business owners perspective because I know that of employees is often biased and without regard for the legal particulars etc so to know what experienced business owners think is valuable to me and does give me confidence that there is merit in getting advice

I do feel better that I haven't been told me sense of this all being wrong is just me

 

[ekm]

So it looks like even leaving my employer behind might be difficult:

'
Hi EKM

Sending an email over with regards to <your applicaiton xxx> as discussed.

XXYYZZ talked about you highly, saying that you were a good candidate and had very strong technical knowledge.

However, he also mentioned that having worked with you before <in the company I am currently having problems with> he felt you needed a certain environment/set-up in order to be comfortable and to thrive in a new role. He doesn't believe that the current set-up within <zzyyzz> would allow you to do that and therefore he didn't want to take you forward to interview at this time.




Neurodiversity absolutely sucks big time.

 

[HFE Signs]

When you are doing an investigation into the conduct a member of staff, who has been diagnosed with mental health conditions,

If there is an issue with their conduct then is should be addressed regardless of their physical or mental health. If it can be resolved by means of reasonable adjustments then great, otherwise it's the same as for a person with no physical or mental health problems.

 

[ekm]

True, let's assume the manager reviewed it at the time, and decided no action was necessary.

And now 12 months later, they have decided it's a disciplinary matter.

Please note I am not claiming any conduct was 'because' of the mental health, but there is a whole side issue of mental health not being considered, for example agreed occupational health adjustments haven;t been met (manager doesn't attend agreed 1-2-1's), manager has ignored letters from the doctor regarding the working environment and concerns about team attitudes/exclusion with a view to the impact of the employees health) - a stress risk assessment was mandated by senior management but this was never carried out (raised several times) and so forth.

I mean the list goes on and on which is why I'd struggle to put all the detail in a thread, but what seems to have triggered the disciplinary ultimately was me raising a formal concern about my treatment a few months ago within the team, and failure to meet OH recommendations which went to upper management and now kaboom, all these closed historic matters now matter.

 

[eteb3]

but what seems to have triggered the disciplinary ultimately was me raising a formal concern about my treatment a few months ago within the team, and failure to meet OH recommendations which went to upper management and now kaboom, all these closed historic matters now matter.

My understanding is you have a natural justice right to know allegations made against you: they should not be kept secret from you for 12 months, even if NFAd. That's because you've had no opportunity to adapt your behaviour having learned of the complaint: they have just given you rope to hang yourself with.

On the basis of this here, I would be speaking again to the union.

 

[ekm]

Hi thanks for your reply.

I need to unpack what you've said as I'm not sure I'm entirely clear on it, but I would say it does look like (now I have sight of the appendix they've compiled) literally gone on a fishing expedition. They've been desperate, seperately they have highlighted concern about not declaring a side business to my manager (this will not be difficult to disprove) and I've a paper trail of management consent for my side gig spanning six years and since day one of employment. This has likely escapared notice as my day to day manager is not available due to sickness, so it looks like someone higher up has made it their job to make me lose mine.

There's other issues as well, my team have been put on a course, to be paid by the company - my colleagyues have gone on the same course but I had my claim rejected due to the form being filled in with the wrong code. I sent the CISO a screenshot of the form showing nowhere to put a code, and also our online expenses tutorial which makes no reference to a code - she responded to say she was unsure how it worked but rejected my claim anyway, so as things stand I'm paying (about half a grand) to be on a course me colleages seem to have gotten for free. Fortunarely I still have the email where i was told to book the course.

But it does highlight they are basically on a fishinbg trip on whatever and anything that can be used against me.


I actually sent the team an email and index outlining all my concerns (it was a significant length) and they have postponed things and have been silent for a week.

 

[eteb3]

By the by, as an employer I would find the term "neurodivergent" completely unhelpful. It might mean dyslexia, or autism, or any number of things, all of them different. It tells me nothing about how to adapt to get the best out of this person.

(Not to mention the crazy overuse of the term by some extremely online younger workers: I've seen the ambiguity of the meaning = untestability of the claim used as card to play)

 

[ekm]

To be honest I'm probably guilty of that, I don't like being too specific (I don't want my conditions to become public knowledge) so I do describe myself as that. I can be more specific if a manager for example decides to open a conversation about difficulties etc or adjustments, but these conversations won't ideally be public or teamwide, given most people know a little on the subject it's a good term if you just want people to be aware because there might be a good cause for it, but not intimately.

What I'm not used to is having my colleagyes canvassed to see if the way I act is what they'd expect for a someone with a diagnosed condition, and the company seem to rely on a diagnosis as opposed to a readily available OH report in order to validate my concerns about treatment.

It just doesn't sit right with me, but I am biased as im looking at it as an employee, and the employers position could trump my own thoughts.

 

[JEREMY HAWKE]

How much time do you think a small business has to put into this?

This is a hell of a lot of drama and I am being realistic here

 

[ekm]

It's not a small business, and from what I'm seeing - the investment of time and effort seems to be rather a lot.

That said the investigation effort (effort to find issue, vs time to substantiate whether it actually is an issue), is comparatively small.

I do agree on the drama front though, I do not get the choice of selecting whether the business is to persue it or not unfortunately.

 

[JEREMY HAWKE]

It's not a small business, and from what I'm seeing - a lot.

I do agree on the drama front though.

If you have come to the conclusion that a business has all this time for what ever is going on here then my question is answered

 

[ekm]

Lovely, but what about mine?

Not to be self centred but it's kinda why I started the thread tbh.

 

[JEREMY HAWKE]

Lovely, but what about mine?

Not to be self centred but it's kinda why I started the thread tbh.

Duno Mate
I'm to busy I love helping people on here but there are limits

 

[ekm]

You haven't popped up to add any value have you?

Never mind, every village has one. I know you're respected here, but normally I just don't involve myself threads I don't want to be part of and there is perhaps something you could take away from that. It's a small shred of optimism but mind if I cling to it?

 

[JEREMY HAWKE]

You haven't popped up to add any value have you?

Never mind, every village has one. I know you're respected here, but normally I just don't involve myself threads I don't want to be part of and there is perhaps something you could take away from that. It's a small shred of optimism but mind if I cling to it?

I am only saying what other people running companies are to scared to say
The value that I have added to this thread is highlighting how "drama for the sake of it " has slowed down business and discourages companies from expanding their teams and creating new positions
In the past it would not be an issue

 

[Newchodge]

I am only saying what other people running companies are to scared to say
The value that I have added to this thread is highlighting how "drama for the sake of it " has slowed down business and discourages companies from expanding their teams and creating new positions
In the past it would not be an issue

From the other side, employers choosing to bully employees becasue of their 'differences' is not unusual. Why they would waste so much time on such an undertaking is beyond me. But it happens; too often.

 

[ekm]

It does happen, but I think particularly with larger organisations the foot that kicks is very far from senses.

For instance, whilst a full investigation has been run against me, on the side business matter, all I'vre had to do is say 'well thats not quite right' and they've had to spend a week thinking of a response.

This is after the investigation. So yeah, companies apparently will waste time on this.

 

[ekm]

So it seems they have recruited a PI to look into my side business, I can't disclose how it's come about (in case it gets read) - except it fell apart in a phonecall. I've been able to do a bit of tracking and correlation my side and yeah it looks like the employers prepared to go all out on me.

Fun times.

 

[japancool]

It sounds like there's more going on here than you've disclosed.

 

[ekm]

Well, I've touched on that but the main point of the thread is in the main about the ND.

In a nutshell, the company has tried to make my life hell for some time, and has done a bit of an investigaiton by the looks of things and have shotgunned at me a lot of things I didn't expect, but none of these are much of much if anything - most allegations are quite trivial things agreed between me and my manager (like my side hustle etc). They've also raised me taking a few more breaks than other people (this again was agreed between manager and my OH nurse) and given a schedule so shouldn't be an issue.

My manager has actually been on long term sick leave, so whilst we could just settle a lot of it by saying 'discuss it with my manager, we've been through this' it doesn't look like they have, and are simply presumiong the worst. Which wouldn't be so bad if they weren't pushing so hard for it to go to a hearing.

It doesn't get me away from the neurodiversity treatment though, which I'd love opinions on (and to be fair some of you have been fantastic with).

 

[eteb3]

Two employment law cases in point:

Neurodivergence in the workplace - a tale of two tribunals

Two recent cases highlight the importance of employers recognising when an employee may be neurodivergent. At first glance the cases of Kaler v…

www.lexology.com

 

[ekm]

Thanks ikll have a quick look at those

Things are getting a bit weird, i've been asked to attend a meeting following the disciplinary hearing, in the start of the email it states its a further disciplinary hearing, it then goes on to describe it as a capability hearing and concludes with an outline of the agenda which includes 'to determine if a disciplinary hearing is required'

about as clear as mud then

They have also asked me to declare any advice my solicitor has given me during the process.

No idea what it is, the private detective malarkey came to absolutely nothing once I raised it as, they were effectively harassing a business that isn't mine.

 

[Newchodge]

Thanks ikll have a quick look at those

Things are getting a bit weird, i've been asked to attend a meeting following the disciplinary hearing, in the start of the email it states its a further disciplinary hearing, it then goes on to describe it as a capability hearing and concludes with an outline of the agenda which includes 'to determine if a disciplinary hearing is required'

about as clear as mud then

They have also asked me to declare any advice my solicitor has given me during the process.

No idea what it is, the private detective malarkey came to absolutely nothing once I raised it as, they were effectively harassing a business that isn't mine.

You are under absolutely NO obligation to disclose advice given by your solicitor. This is covered by legal privilege and I would object very strongly to their request.

Your first para is, as you say, as clear as mud. Has there already been a disciplinary hearing or is the proposal for after a planned disciplinary hearing? You need your union to step up and deal with this. Any luck contacting them?

 

[ekm]

Okay so I have asked for reasonavble adjustments to provide my answers to the disciplinary in writing which they have accepted - they've sent me the questions in writing come across quite inappropriate, such as the solicitor thing, they have also asked me to justify why people feel uncomfortable coming to the office when im there (erm, I work fully remote? I've never met anyone or would have reason to and I can't even think of a scenario where even if someone wanted to avoid me where they;d be in that position of having to?)

Anywya to answer your question, im preparing to submit my answers which I presume will be considered as if it was the disciplinary hearing, therefore in my view, it seems this second meeting they are trying to force through is an additional meeting - and as you know, it's clear what its purpose acrtually is, I thought an outcome would follow following my submission, yet they seem to be still deciding whether its a disciplinary matter or not. It also hints that they might be looking for reason to go down the capability route if disciplinary fails, which is nice - if a shotgun doesn't work lets try a rifle?

My union is letting me down big time, I've requested their presence (previously) and im lucky to get anything - I've also contacted the branch, who have promised to get in touch in response but seem to have no urgency about it, I am leaning on my solicitor of course, which might be complicating things but the initial union representative I initially had some sessions with has completely dissapeared.

So yeah Im not feeling that good about union support atm

 

[Newchodge]

So yeah Im not feeling that good about union support atm

Contact the Regional Head of Health.

 

[ekm]

I've made another attempt, let's see how it goes

 

[ekm]

Still waiting on the union, I've contacted them again to try and find an alternate contact method

I have had clarification from my company stating that this is simply an invitation to the hearing the written responses relate to - which makes absolute sense, not. Their initial email explicitly refers to it as a capability hearing (where did that come from) and also states elsewhere the purpose is to decide if a disciplinary process is required. (I thought the investigation was for that.)

Personally, even though it looks like they've backtracked it appears to me they just wanted to be open ended so could adjust the process to suit whatever track leading to dismissal looked 'best'.