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.

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.

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.

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.

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

@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.

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.

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.

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 was talking issue with the tone of "@OhBling's post", which implies that he owes his employer an explanation for his decision not to disclose earlier.

If he wants to get reasonable adjustments, he will, of course, need to disclose now, but he has not wronged his employer by not mentioning it earlier as there is no legal obligation for him to do so. It's a matter of personal choice.

Most people with neurodiverse profiles will not disclose until /if an issue crops up, because why would you invite the possibility of people discriminating against you unless you absolutely had to?

OP, I know many organisations use this type of feedback but I’ve found it to be very harsh in certain sectors. You’ve been given some good advice here on where to seek help. I’ve found Occ Health really unhelpful at my work but Access to Work were amazing.

”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.“

Diagnosis does not necessarily have to be declared but the key is what is reasonable. If Dave joins the organisation, does not declare he is legally blind, but has a guide dog and asks for braille, the EA 2010 would be relevant in that it would expect the employer to be considerate of Dave’s needs. If Emma uses a wheelchair but never declares a physical disability and the employer asks her to visit a site which is 1st floor and no lift, the EA 2010 would expect the employer to meet needs.

You cannot make assumptions about someone. It’s not reasonable and there is no law that permits employers to act in the manner as if they have a disability. Of course good employer is bound by other duties and should be adaptable but the duty of reasonable adjustment cannot apply in cases where, for example, it is not black and white - as in the ones I described above.

Or you could follow the actual law...

If you had read my other posts, you would have seen that my original post was based on the (mistaken) belief that this issue with communication and social interaction had been ongoing, perhaps precipitating his attempt to seek diagnosis even.

Also, my original post was not about him "owing" an explanation but rather , if this issue had been ongoing, to explain why he had not disclosed previously when the issues were already flagged (although, as it turns out, they had not been).

My point was always that ops dh needs to disclose and seek support, and part of that might have involved explaining why he was only flagging this now.

Pushing at whether this is discrimination is not going to help your DH to retain his job and progress. I've worked with a lot of ND individuals, diagnosed and not, because of STEM experience. My strong advice is that if you really want to help your DH, you'll focus on him keeping this job. If he forces his way out of the job by legal routes, he may struggle to get his confidence back and to get work again. Knocks can really be taken much harder with ASD. It would be better for you to remain calm, and help your DH in figuring out how best to explain his needs to his employer. That may include that the comments upset him and that he needs adjustments around communication, as well as improving in that area himself.

Of course not, they can't discriminate against him for a condition they didn't know about and his appraisal should stand. If he wanted them to make exceptions for him under disability grounds he should have asked but he didn't so it's on DH 🤷‍♀️

Sorry but "it was all done in a personal and in [your] opinion" a harsh manner. Were you present at the appraisal? Why is your DH working 7 days a week? That's a bad idea. If your DH needs adjustments because his ASD is disabling, he needs to actually tell his employer this. I've helped many disabled colleagues in the past get help but the employers aren't mind readers. If someone doesn't disclose they have issues and need adjustments, how's the employer supposed to know and act on the information? I strongly recommend your DH finds a way to stop working 7 days a week. That is not sustainable for anyone. Good luck helping him resolve.

Me?

What I said is the actual law.
Do you have any case law that proves an employer should assume a person has a disability that is recognised by the EA?

True, but it helps if you actually want to get them.

You can ask for whatever you fancy but an employer doesn’t have to give it to you.

This isn’t discrimination but it sounds like a poor
organisation.

People on this thread have not understood the anticipatory duty for reasonable adjustments. I have worked in this area. It tends to be more generic - ensuring buildings are accessible, ensuring quiet spaces for people who can’t work in loud rooms. For example; my work build little one person “pod” rooms. We have a stash of ergonomic keyboards and bigger screens etc. There are 1:1 considerations but the EA does not permit an employer to see an employee displaying common traits of a condition and act upon it. It means the managers should approach it gently and cautiously but not directly or even indirectly allude to it!!

That said, the OP’s husband is clearly not getting enough support from work. It is such a horrible way to find out people are struggling with his communication and I really do feel for him. It may not be discrimination but it’s not a respectful, productive way to treat someone.

No one is NT everyone is ND.

No, I for one absolutely understand anticipatory duty. I've used it to help many. But employers aren't mind readers to an undisclosed and not obvious condition. The DH needs to be open and honest. Also, sorry to repeat, it won't be helping OP's DH working 7 days a week. They should check out the Working Time Directive rest breaks. Everyone should have a minimum of one day off a week but also two days off every other week. Nobody should be working 7 days a week for an employer.

AGAIN, the 24 hours does not have to be one day.

it can be from 6pm on Friday to 6pm on Saturday AND THAT IS COMPLIANT.

We also have no idea why he is working every day. Maybe his employers aren’t aware because it is another secret he is keeping.

Perfectly compliant working pattern across 7 days and less than 48 hours, as an example.

omg, go you, try and shame someone for pointing OP to working time directive to try and help her and her DH understand work rights. And if that's not enough, SHOUT ABOUT IT IN CAPITAL LETTERS (which you did, not sure why). If you've got something positive to say, I'm sure it might be well received.

Just here, trying to use my knowledge for good and correcting the (generally shit) HR advice people usually give.

OP hasn’t given enough detail for any of us to know what is going on.

where on earth do you get the 48 hours every other week from? It’s EITHER 24 hours in 1 week OR 48 in 2.

There are plenty of people working 7 days a week for all manner of employers, including the NHS.

Ok, so you didn't know you were being abrasive. If you don't think the OP has given enough info to comment on, maybe ask for clarification of situation rather than posting not very nice comments to people genuinely trying to assist in future. Thanks