A recent BBC Panorama programme reported on the significant increase in adults being incorrectly diagnosed with Attention Deficit Hyperactive Disorder, more commonly known as ADHD.

In recent years there has been a surge in adults seeking a diagnosis of ADHD through private clinics. Panorama reported that of those adults seeking diagnosis, almost 100% were diagnosed with ADHD and almost always offered medication through a private prescription.

What is ADHD?

ADHD is a neurodevelopmental disorder which affects the way that the brain grows and develops. ADHD is present from childhood and can be characterised by behaviours such as

• Fidgeting
• Lack of concentration
• Careless mistakes
• Forgetfulness
• Risk taking
• Poor time management skills
• Poor planning
• Inability to finish a task
• Mood swings
• Excessive talking.

Social media has focused a spotlight on ADHD in recent years. The result of this is that we now have a new workforce of adults who have been diagnosed as neurodiverse. Many of us will display at least some of these behaviours from time to time. Many of us will have days where our concentration is not great and we make careless mistakes, but when do these issues become a life changing problem? The answer is when these traits affect a person's day-to-day living.

What is a disability?

The medical definition of disability and the legal definition do not always necessarily go hand in hand. The legal definition of disability is contained in the Equality Act 2010, which defines a disability as a physical or mental impairment, which is long term and has an adverse effect on the person’s ability to carry out day-to-day activities.

‘Long term’ means that the impairment must last for 12 months or more. ADHD is a condition that is present from childhood, albeit the diagnosis may not come until later in life.

The effect of the impairment must be significant, i.e not trivial. For example, an employee may - from time to time - struggle with concentration when completing a task. This, in itself, would not be classed as a disability. However, if an employee does not have the concentration to complete any task that they are given, this is likely to be classed as a significant impairment.

Day-to-day living activities cover a broad range of tasks. This would cover everything from a person’s ability to get out of bed in the morning and get washed and dressed to the ability to prepare food, the ability to use transport to get to the workplace (including walking) or having a conversation and interacting with colleagues.

There is case law to say that night shift working can be classed as day-to-day living activity. As such, if an employee is unable to function well during a night shift due to ADHD or any other condition which amounts to a disability, then the employer should carefully consider whether night-time working is suitable.

ADHD would only be considered as a disability under the Equality Act 2010 if the traits of the condition were severe enough to affect the employee’s day-to-day living activity. A medical diagnosis itself, whether from a private health provider or the NHS, does not rubber stamp an employee as being disabled. However, where an employee does meet the definition of disabled under the Equality Act 2010, as an employer you have a duty to make reasonable adjustments.

What are reasonable adjustments?

Disabled employees can be held back by physical features of the workplace, or where there is a provision, criterion or practice which puts the disabled employee at a disadvantage. Where such a barrier exists, the employer has a legal duty to remove the barrier so that the employee is equipped with the ability to carry out their job.

A provision, criterion or practice can be things like targets or set working hours. An employee with ADHD may not be able to meet the same work targets as an employee who does not have ADHD: this could be because the employee with ADHD struggles to stay on task. Where an employee with ADHD has issues with time management, a reasonable adjustment could be to allow flexible start and finishing times.

The emphasis of reasonable adjustments needs to be on what the employer can reasonably offer. For example, if the employer’s business will be significantly disrupted by allowing flexible start and finishing times, then that might not be reasonable. The size of the employer and resources available to them will be relevant to the issue of reasonable adjustments.

Reasonable adjustments are a positive measure to assist employees to carry out the work that they are employed to do. There will be cases where an employee simply cannot carry out part of their role due to a disability; however, it should not be the case that an employee should be given free rein to say that they simply do not want to do parts of their job because they have a disability.

My employee has been diagnosed with ADHD - what happens now?

An employer should not disregard any diagnosis of ADHD, or any other condition. Despite the negativity of the Panorama documentary, it would certainly not be wise for an employer to dismiss an employee’s diagnosis of ADHD simply because it has come from a private clinic.

Employers are entitled to make their own enquiries as to the state of an employee’s health by referring them for an Occupational Health assessment. This can be useful for a number of reasons. The assessment can give an overview of the employee’s physical and mental health. It could be the case that where an employee has been wrongly diagnosed with ADHD, there might be something else, such as a mental health condition, which might affect the employee’s day-today living. The Occupational Health assessment can also comment on whether reasonable adjustments are needed.

About the author

This blog is provided by our specialist litigation and commercial law partner, rradar. This article is for general guidance only and aims to provide general information on a relevant topic in a concise form. This article should not be regarded as legal advice in relation to a particular circumstance. Action should not be taken without obtaining specific legal advice.