Employees with adult ADHD may be very able but also pose issues for their management that if not properly handled may in some cases risk a disability claim

Viewers of BBC's Horizon may have seen comedian Rory Bremner’s programme exploring the science behind a medical condition which he suspects he has – adult attention-deficit/hyperactivity disorder (ADHD).

Approximately 4% of adults have been diagnosed as being affected by ADHD.

It is a mental health condition that is often diagnosed in childhood, with symptoms that can continue into a person’s adult life. This condition can manifest itself in different ways.

Symptoms include:

  • hyperactivity;
  • erratic or impulsive behaviour;
  • poor concentration span;
  • difficulties focusing on tasks in hand.

Adult ADHD symptoms may not be as clear as ADHD indicators in children. Children who suffer from this condition often have behavioural issues at school and struggle to focus in class with their academic studies.

In adulthood, the problem can affect relationships, mood, concentration and a person’s ability to perform their job in the workplace. Adult ADHD treatment includes medications, psychological counselling (psychotherapy), and treatment for other mental health conditions that occur along with ADHD.

Depression, anxiety and feelings of low self-esteem are also more common in adults with ADHD, which can be a challenge in the workplace for the employee and their managers.

On the other hand, individuals with ADHD often have above-average creativity and intelligence levels which can be an asset for roles which require imagination and innovation.

Management challenge

Employers, however, often encounter difficulty when managing the performance of employees who are affected by the condition. The nature of this disorder means that identifying who is affected and when it impacts on their performance is notoriously challenging. Those with ADHD often have a higher absence record too.

When managing employees who have been diagnosed, companies should be mindful of their legal obligations if they choose to address performance and absence concerns. Under the Equality Act 2010, an employee with ADHD may be considered to have a disability if the condition has a “substantial” and “long term” negative effect on their ability to carry out normal day-to-day activities.

A recent case heard by the Court of Session (Inner House), JC v Gordonstoun Schools Ltd [2016] CSIH 32, determined that a school pupil affected by ADHD did not qualify as disabled under the Equality Act, which might otherwise have meant that her exclusion from school for having sexual intercourse with a male pupil was unlawful.

The court held first that the pupil was not disabled under equality legislation because her alleged “mental impairment” in decision-making did not have a substantial and long term adverse effect on her ability to carry out day-to-day activities.

As ever with disability legislation, each case will depend on its own individual facts and vary according to how the individual employee is specifically affected by their condition.

However, if ADHD is deemed to qualify as a disability which affects a member of staff, the employer is obliged to consider making reasonable adjustments to the employee’s role.

Dealing with performance issues

When managing the poor performance of an employee, managers and HR professionals should take the employee’s symptoms of ADHD into account. Roles with duties that require creativity, mobility and a series of short tasks can assist those who struggle to focus for prolonged periods. Examples of adjustments that employers may consider include:

  • allowing flexible working or home-working to remove workplace distractions;
  • permitting the employee to work on particular projects for a shorter period of time and then returning to them later when the employee feels less distracted;
  • encouraging the use of notes in meetings to accurately record discussions and list comments they may have;
  • supporting the employee with appropriate supervision to assist time management and prioritising tasks;
  • setting out clear daily plans and providing clear instructions for employees.

When an employer becomes aware that an employee has been diagnosed with ADHD, it is important for adjustments and support to be put in place in order to manage the individual’s role carefully and assist them to mitigate the effects of this condition.

ADHD may lead to mistakes, accidents and tension with colleagues. Therefore, managers ought to have an appreciation and understanding of how ADHD can adversely affect an employee’s ability to focus and concentrate.

Prior to disciplining or managing the performance of an employee with ADHD, employers should ensure that they seek medical advice from a relevant practitioner such as a psychiatrist, the employee’s GP, or their clinical specialist in order to fully understand the impact of the condition on the employee’s behaviour and what adjustments may be made in order to avoid potential disability discrimination claims.


The Author
Pam Loch is managing director of Loch Associates Group and managing partner of Loch Employment Law. Gavin Macgregor is an employment lawyer of Loch Employment Law. e: info@lochassociatesgroup.co.uk; w: www.lochassociatesgroup.co.uk  
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