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

[WhatNext321]

My DH has just had his appraisal at work. He has ASD, though his work doesn't know, as the diagnosis was only formally made in the last few years and at the time DH didn't feel the need to disclose this. His appraisal details what they perceive as his shortfalls in performance in relation to his communication and social interactions. It was all done in a very personal, and in my opinion, harsh, manner. E.g, many examples of "colleague A says this about you" and "colleague B says that about you".

If DH informs work about his diagnosis, can what was written in his appraisal be seen as discriminatory? The tone of the appraisal was very much "we have great concerns regarding your communication, if it doesn't improve, you'll lose your job", but was not explicitly said.

Any thoughts about what DH can do? DH is extremely worried about his job security and is very stressed out. He already works very long hours, seven days a week, most weeks.

What are his contracted hours?

I wonder if due to his ASD his workload is not higher than everyoen else's, it's just taking him longer? I have seen this before where one person is working significantly longer hours, gets resentful etc, but where managers are very clear the workload is similar. So that might be something to consider sa part of his conversation with his boss when disclosing the ASD.

This. Hiw can they discriminate against a condition they know nothing about? At best, they can review the appraisal in light of the new information.

My understanding is that an employer cannot be found to be discriminating against someone because of their disability if they did not know about it.

There are pros and cons to disclosing, your DH is not obliged to and should definitely have a think about it before he does. If he does decide to disclose it could just be on a need to know basis so that only HR and his line manager know for example. That might be enough to get sufficient support and accommodations in place. Alternatively he could be more open to his whole team. Only he can judge what he feels comfortable doing and what he thinks would benefit him the most. There are many good points in here about disclosing:

https://www.autism.org.uk/advice-and-guidance/topics/employment/support-at-work/autistic-adults

To those who are criticising him for not disclosing earlier I think he possibly are not appreciating the mental gymnastics involved in getting a diagnosis, especially a late one. A lifetime of (often negative) experiences may need to be re-evaluated and it takes time, for some people, to feel able to open up.

It was a while ago now but I started at a new employer and Acces to Work came out and assessed what physical items I required ie IT bits and pieces, whether I needed the doors to be easier to open etc. I think they also wrote a report, I think. The Access to Work side of thinks was fine, my employer completely didn’t have any systems in place for dealing with Access to Work, as I don’t think they’d had to deal with them before, and so there was a staggering lack of communication between departments and inter-department conflict.

@C152
That's really helpful, thank you for taking the time to let me know what you do. It sounds like the person you support is very fortunate to have you. Do you know who applied for the grant? Was it the person requiring the needs themselves or their employer? Also, can I ask if the person you provide support to gets this entitlement full time? With the coaching sessions, does the person you support arrange the sessions privately and then receive some money towards it?

If it would be reasonable to suspect he has ASD given the behaviours listed and observed it can be construed as discriminatory. Can you imagine if it were an employee with a sight impairment that was obvious but they hadn't declared anything to employer and is then pulled up for not reading a notice or something similar.

Best thing is to let them know asap with official paperwork and see how things pan out - what has he got to lose. Once they know they shouldn't dismiss him because of the issues associated with his disability whether they noticed them before or not as that would be discriminatory once they do know even if behaviours observed before they new. They do sound a little off key in terms of how specific they have been in feedback - talk about land all colleagues in it which the he said she said crap

@TramyMcTramFace
You hit the nail on the head with:

"To those who are criticising him for not disclosing earlier I think he possibly are not appreciating the mental gymnastics involved in getting a diagnosis, especially a late one. A lifetime of (often negative) experiences may need to be re-evaluated and it takes time, for some people, to feel able to open up."

Thank you also with sharing your experience with Access to Work.

It's the individual who applies for AtW not the employer

https://www.gov.uk/access-to-work

What do you mean "DH doesn't want to work that much"?

She means he doesn't want to work seven days a week, but his workload is so high that he has to.

Is your DH a member of a union? If not, I would encourage him to join one.

Do your DH's colleagues need to work 7 days a week in order to meet their deadlines/deal with their workloads?

Reading out critical comments about your DH from identified members of staff would have a negative impact on most people's self-esteem. Are they offering him any coaching/support to improve his performance in the poorly performing areas?

Exactly that, thanks. He'd like to have a better work life balance and actually be able to see our kids for more than ten minutes a day, if that.

Just to add, if there are ongoing issues with a member of staff, they should be raised and dealt with as they arise. The annual appraisal shouldn't be the first time that the employee is told that there is a problem with their work.

I would encourage him to disclose the diagnosis and to think about what reasonable adjustments he could ask his employer to make. He does still need to be able to do the job, but they should be open to doing things a bit differently to accommodate him.

I don't think he would be able to argue discrimination retrospectively for a disability that he chose not to declare, unless you could argue that the disability should have been glaringly obvious to the employer in any case. If they suspected ASD and made no adjustments, that would potentially be their fault. But if it wasn't clear to them, then they can't be blamed for what they didn't know.

@WhatNext321 The person requiring support applies for the grant themselves (online, through the website link I posted). It's available for both self-employed and employed people. As your DH is employed, the application will ask him to provide the name of someone at work (e.g. HR or line manager) who can confirm he is employed there. If your DH struggles to complete online forms, he can also make the application via telephone (there's a number on the website).

Your DH will also be asked to write a list of all the things, related to his condition, that means he struggles at work; and how much time each item takes (to work out how many hours of support he needs). I wrote the list on behalf of my boss, and Acces to Work reviewed it and said they would only fund 3/4 of the weekly hours requested, as it could be said that some of what I did was what would be expected of a standard secretary/administrator. That's why my boss tops up the cost of my hours, as she does need me for all the time we specified. You do need to be very specific.

I only know about the scheme through this experience, but it does seem to be very user-specific. Some people, due to the nature of assistance required, will need a human assistant, others would benefit from coaching, while others would find assistive technology sufficient.

Yes. Access to Work provided a list of approved coaches for my boss to choose from. Usually, one is required to pay for the block of 5 or 6 sessions upfront, then reclaim the full cost through Access to Work. (Access to Work only reimburse you for a session once you have had it though, which was unaffordable for my boss. So the coach was flexible and invoiced for each session individually, so that the cost could be reimbursed each month.) The coaching is geared specifically towards helping this individual get into work/figure out what assistance they need to be more effective at work. Coaches are also specialist in areas like ASD, ADHD etc., so they should have a good understanding of issues your DH may need support with. It's my understanding that sessions are very focused and outcome driven, not general.

Yes, I think DH is a member of a union. I don't know about his colleagues' workload, but I suspect it's high.

The comments other colleagues made were included in the written part of his appraisal. I was shocked at this practice. The comments did indeed have a negative impact on DH's somewhat fragile self-esteem.

Why does he work 7 days a week? That seems unnecessary.

They haven’t discriminated because they don’t know he has a disability. Even if they do know, the fact he can’t communicate well to the extent it’s affecting his work means that maybe he needs to get a job where social skills/communication isn’t as necessary? ASD or not, if he’s struggling with aspects of the job then it means it might not be right for him.

His previous appraisal won’t be considered discriminatory because his work doesn’t know about his diagnosis and informing them won’t have retrospective effect.

There may be benefits to telling them - they might be able to make accommodations or offer support / training to help him. And it will potentially impact on his appraisals going forward.

They couldn’t have discriminated if they didn’t or couldn’t know at the time. So I don’t see how it was written is discriminatory, but may change going forward

Maybe because disability discrimination is still alive and kicking no matter what anyone says. Been there got the t shirt. You're damned if you do, damned if you don't.

He needs to tell them.

How are they supposed to know what lies beneath if he doesn't share?

They then can and must make reasonable adjustments under the Equality Act.

Their refusing / failing to do so will be problematic.

If managers and colleagues understand him better their interactions will be better, so will his own experience.

Regardless of any disclosure of ASD it sounds like an awful toxic place to work and not somewhere that will embrace his diagnosis and work with him. I think either way he needs to look for another job as even with disclosing his ASD if they want to manage him out they will find a way.

This. I had a manager coerce me into disclosing a disability that I was still getting my head around and was scared about, having to take in that I could not have the future I wanted and they humiliated me until I disclosed it, not even dealt with it myself.

The thought of declaring conditions to employers can be daunting for some people which is understandable, but risky.

If your DH's workplace were not aware of his ASD condition I don't think he's covered, however after he declares his condition, his workplace must make reasonable adjustments but can not be expected to do so if they were not informed.

Seek a second opinion on this, just to make sure but I think he needs to accept the feedback.

Its the same for people with other conditions such as epilepsy and diabetes, if employers are not made aware, employees can find themselves up the top of Niagara falls in a lilo.