Work very critical of DH, but did not know he has ASD - discriminatory?

well it depends on the job , what is needed from a communication aspect and how badly he was doing at communication. The base expectations shouldn’t be what we push employees for but better and the expectation needs to take in to account what is required for the job.

I’ve been in HR for over 20 years (chartered) and am ND. I’m well aware of the law, but the practicalities (getting managers to recognise and address) are challenging.

I have actually successfully defended legal claims where individuals have been spoken to about their communication skills and alleged discrimination due to an undisclosed ND condition.

A good employer would have developed a bit of self awareness around their culture and recognise when their expectations or policies are-at base level- discriminatory against those with neurodiversity. I think we are at a point of understanding that allistic styles of communication aren’t necessarily the ‘right’ ones or superior to those styles preferred by the neurodiverse and should be creating work environments that are respectful of different types of communication.

Of course, unless you are in the public sector, this isn’t a legal requirement (at present) but could be considered best practice.

I’m not sure why so many people on here keep insisting that there is a) no legal right to protection without a diagnosis and b) that diagnosis must be declared to obtain reasonable adjustments, based on nothing more than their own opinion/vague inclination. More than one poster has posted the relevant legislation that debunks this view and others have posted from respected sources such as Acas that backs this up.

@allthatfalafel I’ve demonstrated up thread how it can be perfectly legal. The 24 hours doesn’t have to be a whole day like “Saturday”. 6pm Friday to 6pm Saturday is 24 hours.

But if the hours are caused by him not being able to do the work in the expected hours, as opposed to a shift system, the employer isn’t to know that.

But they can’t then expect adjustments to be made if they keep it secret.

Are you sure his working pattern is legal, has he opted out of or agreed to anything different to the norm? As typically you have to have 24 hours uninterrupted time off every 7 days, or 48 hours every 14.

It sounds like OP's DH himself didn't know he had ASD, wouldn't have been able to say for sure. Yet somehow OP thinks his colleagues should have "known" ? er... how does that work?

Managers & colleagues can reasonably be expected to know colleague has a disability if they use a wheelchair while in the office, tell you they can't drive due to visual impairment, have an obviously missing hand, mention a few times being medicated to deal with Tourettes.... I don't want any employer of mine deciding I'm disabled on basis of "from subtle aspects of your behaviour and personality I have decided you must be disabled and should be managed as a disabled staff member. I'm not qualified to diagnose these things but still am sure of my guess AND I assume I must be right in spite of fact that you yourself haven't expressed any awareness of having a disability."

WTAF would that situation be.

Neurodiversity is not a criminal conviction and there is no legal obligation for anyone to disclose it to an employer.

People don't tell employers from the outset because they are worried about being discriminated against.

If he's not disclosed that then they'd have no idea. I'd officially see HR and discuss ASD disability is taken into consideration. It sounds dreadful to be brought into an appraisal IMO, unless their personality is toxic or unacceptable of anyone then other people may just have to grow up and accept people are different!
ASD are prone to burn out /overwhelming so just get that in at HR too as a work environment has a duty of care

Ok so his colleagues were asked for feedback on your dh.
You said they were harsh but was there anything in them that can be used to improve communication from both sides?
What exactly are the issues?

It’s not automatically a disability. It depends on the impact it has day to day.

It’s not clear whether the OP’s DH was even aware of the impact ahead of his appraisal.

Yes, but they can’t assume how the condition affects the employee, or even that the employee has a condition needing them!

Can you imagine?

Employer: “we think you have a neurodivergent condition. Here’s an appt with occ health and we’re going to assume you don’t want any verbal communication so we’ll just email
you from now on.”
employee: “how very dare you.”

Ideally it would be:

Manager during a regular 121: “I’ve noticed you have some difficulties managing your time/communicating with others/completing work/being in the office/delivering at a consistent standard. Is there anything we can do to help you?”
Employee: “actually, I have been diagnosed with ASD and struggle with the noise in the office/distractions when WFH/the lighting in the office/hours of work/commute/language others use to describe things. I find iIt very tiring and would really appreciate working together to see what helps.”
Manager: “okay, I think a chat with occ health would be helpful and after that we could arrange an assessment of your workspaces to see what can be improved for you. We can get some neurodiversity training for everyone. Sound good?”
Employee: “sounds great. Thanks very much.”

it’s rarely ideal.

if he discloses his disability to them now, i think it will help a lot.
He needs to tell them that he has been assessed and has autism. He didnt tell them as he didnt feel he needed any adjustments, but this appraisal clearly shows that he does, and can there be a meeting to discuss how to make it work better and any adjustments.

its important to let work know. It isnt about whether they can be found to be discriminatory retrospectively, but its what they do with the information now.
His disability is a protected characteristic

It really is for an employer to make suggestions if they could reasonably be expected to know. This is not about guessing about diagnoses but adjustments around long-term functional incapacities that have a substantial effect day to day.

How on earth would the company be reasonably expected to know when your own DH didn’t know until recently, having not long been diagnosed?!

No. We can’t be expected to make assumptions about people otherwise you could never pull anyone up on anything.

you should focus on finding ways to help your husband not trying to show they have discriminated against him.

I think this is very valid. In the context you describe, I prefer the terms autisic and allistic as I don't think one is "right," although appreciate other's might disagree. You could - and this is Segwaying the topic somewhat - argue that they're both equally valid styles of communication and whereas your husband's colleagues perhaps find him blunt and too direct (I'm giving examples), he might find them lacking in clarity and too vague. Neither is "right". They're just different.

What type of comments are your Days colleagues complaining of? Can you give an example of what could be a similar comment. He making comments that others might find upsetting or insulting?

Might the bluntness and harshness of this appraisal have come about because your husband might nit not have noticed his managers and colleagues more subtle attempts to get him to modify the way he behaves with colleagues. Might they have felt they had to be blunt?

I'm not sure I would assume the negative feedback mean the company is trying to manage him out. It might be that they want to work with your husband to work out how to improve things.

One of my sisters works in an office and there is a guy there that has very poor communication skills. He is a math whizz but is unable to understand what is and isn't appropriate behavior in a workplace. For example if other staff returned to the office after sick leave he would badger them to tell him why even when directly told not to by different members of staff.

It isn’t discrimination if they aren’t aware of a disability.

Once your DH declares his needs, the company will need to make reasonable accommodations for his needs.

It is also really important to consider, though, if the job is suited to your DH and his needs, because if he isn’t doing well and it’s not something that can be solved with reasonable adjustments then they are still within their rights to dismiss him.

It’s hard, but if open and flexible communication is a key part of the role and this isn’t something your DH is going to be able to manage then is there a role or industry he might be better suited to?

My DS is profoundly autistic with learning disabilities so I have a lot of lived experience. DH works in tech and employs a number of autistic people and it works really well. I work in the nhs, in an unscheduled care sector. (Emergency medicine, maternity and obstetrics, aspects of palliative care - basically, the unpredictable ones!) I had an autistic colleague a few years ago and his utter lack of flexibility and poor social communication in a job that is entirely focused around unplanned face to face contact with people having the scariest days of their lives made things impossible for absolutely everyone in our team, and he was eventually let go, because the sheer amount of accommodations required to deliver safe care with him in the team was an intolerable strain on everyone else.

I haven’t seen anything that states what adjustments might be needed, so no idea how you can assert there should be “many” or indeed that they would be reasonable for the business.

No indication the OP’s husband even knows what might help him, and it’s not for the employer to make suggestions. Occ health may be able to help.

You can still work 7 days a week and be compliant.

eg Mon - Fri start at 9am finish at 5pm. Start again at 6am on Saturday until 12noon, then 12 noon on Sunday till 6pm and back at 9am on Monday. There is one 24 hour break and all others are more than 11 so compliant.

47.5 hours worked so even inside the 48 hour normal limit (assuming 30 min lunch break Monday-Fri)

I have read it. Many times over the years. And it’s down to what adjustments need to be made. And in this instance if appears quite a few will be needed.

The duty to make reasonable adjustments is anticipatory; if an employer has grounds to believe they are necessary they should make them. Employees can disclose what they see fit.

You want to see something formal that backs up my statement that a diagnosis is not required? Read the Equality Act and/or the statutory guidance produced by the EHRC. The test in law is not a diagnosis but that a long term impairment would otherwise put a worker at a substantial disadvantage. Whether or not someone meets the legal definition can only ever be definitively determined at a tribunal.

I understand that you HAVE to advise a company of your impairment. They are not meant to guess. If you require accommodation from the company or your colleagues because of it, then you are likely to have to show a formal diagnosis. I would love to see something formal which backs up your statement. Of course you can just say to a company you are x, y,z, but they are within their rights to ask for formal proof if this has a major affect on the way you and the company work together. And in this instance, it seems there is a massive disconnect.