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.

How do you suggest doing it?

The onus is not on the person with Asd to change, it’s on both to find a way to make it work. But to do that the one with add needs to be aware of the problem and given support on how to overcome it and the other one needs to be aware of the issue in order to adapt their communication style and expectations

So what you’re asking is are his employers BU for not being psychic mind readers!?

Unfortunately a disclosure of diagnosis won't change the fact that he apparently has some communication difficulties which affect his colleagues. Whether there are adjustments to enable him to work better remains to be seen but he can request this. Do you think his workload may be due to difficulties in self managing his time and efficiency, expecting too much of himself or is his workload overly demanding? Presumably he is working from home at least some of the time to do so seven days a week. Would attending an office and having regular face to face meetings work better, and he could psychologically leave his work at the office rather than being tempted to do overtime,

OP i have loads of experience with access to work applications because of my job. Feel free to DM if you need more support

@WhatNext321 re Access to Work, I have used this successfully (not for ASD) and my experience was pretty positive. After applying via the gov.uk Access to work site they sent an assessor to go through what might help me do my job with my disability and suggest adaptations, reasonable adjustments etc. The HR and occupational health people from my employer were involved as some of the costs of any adjustment or adaptation has to be met by the employer before any AtW grant kicks in. I was awarded 3-year grants. The main problem I had is that my HR team really had no idea about AtW so I had to become a bit of an expert sharpish! It's a good scheme though, well worth the hassle and does highlight to the employer that you "qualify " as disabled in relation to the equality act.

No - I am sorry - unless his company have been advised that there is a recent diagnosis, how are they going to be able to tell that there is an issue? He has worked for them for several years, and now, because there is a problem with his review, they decide that they should tell the company about the diagnosis. It would have been correct to tell them about the diagnosis before it got to this stage. And the OP seems intent on discrimination issues when there is no WAY that this can be taken into account until the company is made aware that there is a diagnosis which should be taken into account. No one has time these days to be a mind reader.

There is no requirement for a diagnosis.

In law this a question of impairment and not a diagnosis.

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.

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 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.

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 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.

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.

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.

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.

Thanks for your input @stichguru . DH said he informed work today of his diagnosis and upon doing so, his line manager said he was not surprised by this. So, I assume this:

"Employees are still protected from discrimination if their employer could reasonably be expected to know they have a disability."

is relevant to some extent?

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.

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?!

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.

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

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.

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.

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?

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