What Happened?
A former Lidl employee, Ryan Toghill (a Deputy Store Manager), was dismissed for gross misconduct after operating a forklift against his employer’s instructions. Part of Lidl’s reasoning for his dismissal was that he had deliberately ignored his manager’s instruction not to operate the forklift, and during his disciplinary hearing, he appeared to show no remorse over the incident.
However, Mr Toghill has ADHD and experiences ‘rejection sensitivity’, defined as “an intense, emotional response to perceived criticism or rejection.” During the disciplinary process, this affected how he communicated and responded to the allegations, giving the impression to Lidl that he lacked remorse over the situation. Mr Toghill explained that his ADHD affected his communication style and responses in his appeal against his dismissal. He also explained that he had not understood the instruction from his manager or the seriousness of the act.
The appeal manager concluded that Mr Toghill may have misunderstood his manager’s instruction and there was a degree of ambiguity about the seriousness of the act in what the manager had said. They also considered that the reference to a lack of remorse was incorrect and it did not sufficiently consider Mr Toghill’s ADHD and impact on his communication style. As an outcome to the appeal, the appeal manager offered to redeploy Mr Toghill as a Shift Manager along with a final written warning (a demotion). Mr Toghill did not accept the reduced sanction and redeployment.
What Claims Were Brought to the Tribunal?
Mr Toghill brought claims of unfair dismissal, wrongful dismissal and disability discrimination, specifically a failure to make reasonable adjustments, discrimination arising from disability and indirect discrimination.
The Tribunal found that Lidl had unfairly and wrongfully dismissed Mr Toghill, that his dismissal was discriminatory because it was because of something that arose from his ADHD, and that Lidl failed to make reasonable adjustments in the disciplinary hearing.
In particular, it found that:
- His ADHD constituted a disability under the Equality Act 2010;
- His condition placed him at a substantial disadvantage during the disciplinary process in that his ADHD caused him difficulties with communication which were taken as a lack of remorse. Lidl had dismissed him because of this, and this was discriminatory because it arose as a consequence of his ADHD;
- Mr Toghill’s ADHD put him at a substantial disadvantage during the disciplinary procedure (issues with engaging in meaningful conversations and an ability to retain information). Lidl failed to make reasonable adjustments during the disciplinary procedure to alleviate these disadvantages, including:
- Seeking advice prior to the hearing on the manner of its conduct for a person suffering from ADHD, to ensure that the hearing was fully cognisant of the nature of Mr Toghill’s disability in terms of explanation and his understanding of the proceedings, questions asked of him and affording him an adequate opportunity to put his case; and
- Implementing breaks in the course of the hearing to ensure that Mr Toghill had adequate thinking time and time for reflection as required for his disability.
- Mr Toghill’s dismissal was procedurally unfair and not within the band of reasonable responses:
- Mr Toghill was dismissed because it was found he had deliberately deceived his manager and failed to comply with instructions, resulting in a breach of trust. The disciplinary manager had stated that if it had just been the use of the forklift itself, they would have given him a final written warning. However, the allegation of a breach of trust was not included in the invite to disciplinary hearing, and so Mr Toghill was not expecting to face this allegation.
- Lidl failed to take into account his disability and misinterpreted behaviour linked to his disability as misconduct.
- Mr Toghill produced evidence that different sanctions that had been applied by Lidl in relation to the use of a forklift truck where not authorised to do so.
What was the Compensation?
The Tribunal awarded £45,147 in compensation.
This included:
- An injury to feelings award of £20,000 due to disability discrimination;
- Compensation for past financial losses of £21,116.22;
- A basic award for unfair dismissal and an award of loss of statutory rights.
This award reflects how costly it can be when employers fail to properly account for neurodiversity.
Important Lessons for Employers:
- Understand how neurodiversity can affect your employees
ADHD and other conditions can significantly affect communication, emotional responses and behaviour.
- Do not make assumptions regarding behaviour
In this case, what appeared as a ‘lack of remorse’ could be a manifestation of a disability. If someone raises that a disability affects them in a certain way, obtain further information about this before making any decisions.
- Ensure reasonable adjustments are part of your policy
Adjustments such as extra time, breaks or alternative communication methods should be considered where employees raise that they face difficulties with any part of the process due to a disability.
Final Thoughts?
This case is a clear reminder that fairness in the workplace requires more than following procedure – it requires understanding people.
How can Thrive Law Help?
At Thrive Law, we help businesses reduce risk while creating a fairer workplace – from reviewing disciplinary procedures to advising on reasonable adjustments and neurodiversity inclusion. We also provide training for managers to better understand and support neurodivergent employees.
If you need your disciplinary procedure reviewed or advice on how your organisation can better support neurodivergent employees, get in touch with us today.
Email: enquiries@thrivelaw.co.uk
