The law and ADHD at work — rising claims and unclear rules

Supporting neurodivergence-related disability calls for collaborative approaches and clear guidance, says Suzie Green.

Attention deficit hyperactivity disorder (ADHD) is increasingly recognised as a condition that can substantially affect occupational functioning in various ways.

This shift is reflected in legal trends: the number of UK Employment Tribunal decisions citing ADHD increased by more than 700% between the first half of 2020 and the first half of 2025, highlighting the rising significance of neurodiversity in the workplace.

The classification of ADHD as a disability under the Equality Act 2010 does not depend on formal diagnosis. Guidance from Acas makes clear that under the Equality Act 2010, a worker may be considered disabled without a clinical diagnosis of ADHD, and employers are expected to provide support – including reasonable adjustments – to support occupational functioning where there is a suspected neurodivergence-related disability, including in the absence of explicit medical evidence.

Under Section 6 of the Equality Act 2010, a person is disabled if they have “a physical or mental impairment [which] has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”. The statutory focus is therefore on the functional impact of an impairment, rather than on whether a medical diagnosis has been formally obtained.

Collaborative approach

Acas suggests a collaborative approach between worker and employer, to identify, through trial and error, which adjustments are most effective. This places employers under a proactive duty to respond to need rather than diagnosis, while also raising questions about how such duties can be meaningfully operationalised in practice.

One central challenge facing the employer lies in the heterogeneity of ADHD itself. Research consistently demonstrates that ADHD has highly variable presentations, shaped by subtype, symptom severity and other comorbid conditions.^1,2,3 Acas in its own guidance has indicated that workers may not be expected to know what adjustments will be most supportive for them, particularly in the absence of a diagnosis.

Further complexity arises from the limited reliability of existing methods used to assess workplace impairment. Studies indicate that commonly used self-report and retrospective measures may not be best suited for individuals with ADHD,⁴ and there is a notable lack of robust research examining the effectiveness of workplace-based adjustments or organisational interventions for employees with ADHD.⁵

While Acas guidance on neuroinclusive practices offers practical starting points, such as inclusive recruitment policies, awareness-raising and managerial training, there is a noticeable absence of explicit, evidence-driven guidance on the most efficacious support measures for neurodivergent employees.

As tribunal claims continue to rise and employers are expected to act proactively, regardless of diagnosis, there is an urgent need to interrogate whether current guidance goes far enough, and whether it is sufficiently grounded in empirical evidence to support both neurodivergent employees and organisational decision-making.

These difficulties are not merely theoretical. They are increasingly exposed in litigation, where Employment Tribunals are regularly required to reach conclusions about disability-related disadvantage and the efficacy of reasonable adjustments.

Determining disadvantage

An example is the recent Employment Tribunal decision in Mr Ryan Toghill v Lidl Great Britain Ltd, in which an unfairly dismissed supermarket worker succeeded in claim for a failure to make reasonable adjustments for his ADHD during disciplinary proceedings. The duty to make reasonable adjustments is contained within Sections 20 and 21 of the Equality Act 2010, which impose a duty on employers to take reasonable steps to avoid a disabled employee being placed at a substantial disadvantage by a provision, criterion or practice (PCP) when compared to colleagues without his condition.

Here, it was not disputed that the claimant’s diagnosis of ADHD met the definition of a disability under the Equality Act. However, the tribunal was left to determine whether Lidl’s disciplinary procedure placed the claimant at a substantial disadvantage compared to his non-disabled comparators without his condition.

Unlike other disabilities, the tribunal expressly acknowledged that ADHD “[affects] people in many different ways”, and that the impact on one individual may not be replicated in another person with the same diagnosis. The claimant’s own representative accepted that the evidence of a group disadvantage for employees with ADHD was “a bit thin”, highlighting how case-specific comparator analysis must be when applied to neurodivergent conditions.

Nonetheless, the tribunal was ultimately persuaded, on the basis of evidence about the claimant’s specific difficulties with processing information, retaining detail and engaging in sustained verbal exchanges, that the claimant as an individual was placed at a substantial disadvantage during the disciplinary hearing itself, though notably not during the investigation or appeal stages.

The tribunal concluded that Lidl had failed to make reasonable adjustments, notably by not seeking advice on how to conduct a disciplinary hearing involving an employee with ADHD.

Questions over guidance

It is noteworthy that neither the Acas Code of Practice on disciplinary and grievance procedures nor associated Acas guidance provides specific direction on how disciplinary processes should be adapted for neurodivergent employees, and as such it was left to the employer to respond proactively to seek out this expert guidance. Their failure to do so led the tribunal to determine that they had behaved in a manner which was legally non-compliant.

This case provides an example of the regulatory silence that places employers and tribunals alike in a difficult position. Employers are expected to act proactively, with or without a formal diagnosis, while tribunals are required to assess disadvantage and causation on a case-by-case basis with limited empirical grounding.

As ADHD-related claims continue to rise, the question becomes increasingly pressing: does existing guidance and research go far enough to support lawful, fair and evidence-based decision-making in contexts involving ADHD workers? Or does the current framework risk leaving both employees and employers navigating uncertainty?

Suzie Green is a trainee solicitor in Scotland and has a Masters in Psychology. 

Footnotes

¹ Dobson-Patterson et al (2016); Luo et al (2019).

² Barkley et al (2010); Hechtman et al (2016); Alexander and Farrelly (2018).

³ Greven et al (2018); Williamson and Johnston (2015); Babinski (2024).

⁴ Babinski et al (2011); Barkley et al (2010); Owens et al (2017).

⁵ Klein et al (2012); Caserta (2019). 

Bibliography

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