A recent decision of the Employment Tribunal highlights that employers must understand and consider whether an employee’s conduct may be a manifestation of their disability before acting.
Background
Shannon Burns had previously worked in Silicon Valley and was a member of organisations that help women into the tech industry. Burns had been diagnosed with ADHD and reasonable adjustments had been made for her in previous workplaces, including access to mental health professionals and removal of restrictions on time for sickness. Burns arrived at Gitpod as a Vice-President of Engineering on a salary of £220,000 with a £78,000 bonus per annum.
In September 2022, Burns told Eva Hyder, Gitpod’s Head of People, that she had ADHD and dyslexia and that she had overcome these issues in her past.
In February 2023, Burns requested an ADHD coach after feeling overwhelmed with her workload and having experienced a high level of anxiety. Concerns surrounding her performance were raised shortly after, with Johannes Landgraf, Gitpod’s Chief Executive told a colleague that she was “not a superstar” and that he would not hire her again. The Tribunal found that Landgraf was unaware of Burns having ADHD and dyslexia at that time.
Whilst on a work trip in April 2023, Burns consumed “quite a lot” of alcohol to noticeably alter her behaviour: crying in front of other colleagues and appearing drunk. Burns lost her room key, was unable to wake her roommate and fell asleep in the sauna. When this was discovered, Burns later received a message from a senior male executive who stated that she must “lead the team by example” and “stay in control”. After the event, Landgraf had also voiced his concern about Burns’ “lack of professional accountability” and behaviours which “were incompatible with executive responsibility”. Burns was dismissed a month later. There appeared to be no consideration made of how Burns’ conduct was a manifestation of her disability.
Decision
Burns’ claims for Gitpod’s failure to make reasonable adjustments and discrimination arising from disability succeeded. Employment Judge Rachel Wedderspoon ruled that “insofar as [Burns] was criticised for being locked out in the evening the Tribunal finds that this was likely in part to be as a result of the combination of her alcohol consumption and her forgetfulness which is something arising from her disability of ADHD”. As such, Burns’ ADHD contributed to a great deal of forgetfulness, where she would persistently lose items. This involved the losing of the keys to her hotel room at the team-building event.
Burns told the Tribunal that her male colleagues were “far more intoxicated” and faced no punishment and that there was a “tech bro” culture at the company. The Tribunal dismissed Burns’ claims of sex discrimination by citing that “she displayed a lack of professionalism, namely lack of executive presence as vice president. That had nothing whatsoever to do with the fact that [Burns] is a woman”. Her unfair dismissal claim was also dismissed as she did not have 2 years of service.
A separate hearing will decide the level of compensation owed to Burns.
Lessons for Employers
This decision serves as a reminder as to how employers must ensure they understand how conditions like ADHD can affect behaviour. This underscores the need for training on disability awareness, inclusive practices and therefore whether reasonable adjustments could be made to prevent any issues. It is important that employers consider all contributing factors when assessing apparent misconduct to ensure that they do not disregard the effects of an employee’s disability.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
