Introduction

In the recent Employment Tribunal decision in Mr R Watson v Roke Manor Research, it was held that sighing and other forms of non-verbal communication can amount to discrimination. This case serves as a reminder that even subtle expressions of frustration may be discriminatory when they are linked to an individual’s disability. At a time when many organisations are reassessing their diversity, equity and inclusion (DEI) policies, the judgment underscores the importance of staying committed to practices that not only foster inclusivity but also ensure compliance with UK equality law.

Background

The Claimant, Robert Watson, was employed by Roke Manor Research, the company responsible for Hawk-Eye (the ball tracking technology used at Wimbledon and other high-level sporting events). The Claimant joined the company in 2020 as a software engineer but had issues with time-keeping, focusing and avoiding distractions.

The Claimant was diagnosed with attention deficit hyperactivity disorder (ADHD) in 2022. After the diagnosis, the Claimant took four days of sick leave and began taking medication to help manage his ADHD. Following the Claimant’s return to work, his manager, named as ‘DT’ for national security reasons, explained that he had worked longer hours to cover the Claimant’s workload during his absence. DT also criticised the Claimant on several occasions, including questioning his hours of work, the time spent at his desk and his productivity. The Tribunal also heard evidence that DT ‘joked’ to the Claimant in a one-to-one that they should ‘put his ADHD aside for one moment’. DT also said to the Claimant that he was becoming ‘a net detriment’ and ‘expressed nonverbal frustration such as sighing and exaggerated exhales’.

The Claimant was signed off with work-related stress in 2023 and did not return to the company. The Claimant brought a Tribunal claim later in 2023 and was ultimately dismissed on the grounds of capability in 2024.

Decision

The Tribunal determined that the Respondent should have identified and implemented reasonable adjustments following the Claimant’s ADHD diagnosis. The Claimant was also successful in his claims for discrimination arising from disability and harassment related to disability. The Tribunal acknowledged that the Claimant’s reduced contribution to the project had a detrimental impact on DT because it placed additional burdens upon him. The Judge made it clear, however, that whilst this additional pressure explained DT’s behaviour, it did not excuse it.

The Tribunal concluded that, had appropriate support been in place, the Respondent may have avoided the situation in which DT was overwhelmed by his workload and ultimately the other discrimination would have been less likely to happen. The Tribunal also accepted that DT’s behaviour, including the ‘sighing and exaggerated exhales’, was directly linked to the Claimant’s disability and had a detrimental impact on him.

The Tribunal found that the Claimant’s dismissal was fair, the Judge acknowledged that the reason for the Claimant’s absence from work was because of work-related stress, he had been absent from work for 10 months and there was no prospect of him returning to work. The Respondent had attempted to arrange on occupational health referral but the Claimant did not engage with the process. The Tribunal therefore concluded that the primary reason for the Claimant’s termination was his continued sickness absence and a lack of clarity about whether he could or would return to work.

Lessons for employers

Beyond this case acting as a reminder that non-verbal communication can be as impactful as verbal communication, this case highlights the importance of carefully managing and supporting neurodiverse employees. Employers must consider whether certain behaviours are linked with neurodiversity and if additional support may be required. Equality law requires reasonable adjustments be made for employees with disabilities and putting these in place should not only improve the working environment for neurodiverse employees but for other employees as well.  

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.