Why do neurodivergent police officers and staff resort to legal action against their employers?

by John Nelson
Chair | National Police Autism Association

In December 2023, the People Management website published an article on an Employment Tribunal case involving Lauren Crawford, an autistic and dyslexic police officer from Cumbria Constabulary who had won a case of direct discrimination against her employer. This case was notable as being one of the first – if not the first – widely-reported neurodiversity-related cases involving a police force. It probably won’t be the last.

Employment tribunals – civil legal cases arising from disputes over unlawful treatment under the Equality Act, and other breaches of employment law – are something of a taboo subject in policing. Accurate figures on the number and nature of disputes involving protected characteristics are difficult to assess due to the common practice of cases being settled out-of-court, typically with a non-disclosure agreement as part of the settlement – it is estimated that cases that go to court typically cost a Force in excess of £100,000, regardless of outcome. The corporate stigma around ETs is perhaps understandable, given that each case represents an alleged failure of an organisation dedicated to enforcing the law to treat its own staff lawfully and fairly; and yet each ET case represents a unique opportunity to learn from what has gone wrong and to make the police service a better employer. The reluctance to talk openly about ETs, the use of NDAs and an implicit tendency to blame the complainant means that these opportunities are often lost.

In this blog I aim to shine a light on the subject of neurodiversity-related employment disputes, and to share some of the experiences of our members gleaned over the years since the launch of our network. This article also serves as a resource for the presentation on employment tribunals which featured as part of the third Neurodiversity in Poicing conference in March 2024.

Before we go any further, a common-sense disclaimer: any police colleague involved in a dispute with their employer is advised to seek advice from the Federation, police staff union or qualified legal counsel before making any decisions concerning their employment. The information in this article is provided for interest only.

Firstly, what does the Equality Act say about neurodiversity? Although there is an ongoing debate about how neurodiversity fits into the wider sphere of disability, ND conditions must fit under the disability umbrella in order to be afforded protection under the Act for the purposes of unlawful discrimination. The Equality Act states that a physical or mental condition (an ‘impairment’ in the wording of the Act, which some may disagree with) has to represent a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities. This obviously depends on the individual, since ND conditions affect everyone differently. More on this later.

A few ET facts and figures:

• Disability (and nerodiversity as a facet of disability) feature disporportionately. An oft-quoted figure provided by the Police Federation of England & Wales is that over 40% of police ET cases are related to disability.
• The PFEW will only fund legal representation if there is a 51% chance or greater of winning a case. Although ET fees were abolished in 2017, legal representation is recommended for claimants – respondents (employers) can be expected to vigorously defend ET cases. The PFEW will only fund cases for Federation members if the likelihood is of a win.
• An ET finding will become part of the permanent public record. In the age of the Internet and Google, this means your name and details of the case will be available on the Web in perpetuity for anyone to view.

A few common themes we have identified:

• The level of disability assessed by an ET would need to represent a ‘significant impairment’ for the individual. This links back to the definition of a disability in the Equality Act. The ‘significant’ element is particularly relevant for officers who have already experienced some success with their careers: in a recent case, a ND condition was found not to meet this test as the officer had already achieved promotion in their career without the benefit of adjustments.
• People ask for help too late in the process. We have been approached for support at the point of an ET application being made – it is much better for staff networks to be involved when the problem first appears, in order that we can assist with requesting adjustments and liaising with line management to broker a resolution, as part of a grievance procedure if necessary.
• Struggling without adjustments can weaken your case. People will naturally try to adapt and work through adversity before approaching staff networks, the Police Federation or staff unions for help; however coping without adjustments for an extended period of time can weaken a future ET case. Where an employee’s performance or sickness record is affected, it also risks performance or misconduct action being taken.

On the subject of misconduct – which can arise from poorly-supported ND and feature in ET cases – it is important to note the effect of disclosing ND. We have found that ND being used as mitigation in misconduct cases can be used against the claimant – for example, being used to cast doubt on an officer’s competence. On the other hand, in cases where misconduct is proven, ND has led to the severity of a sanction being reduced – for example, a written warning remaining ‘live’ for a shorter period of time – rather than a lesser level of sanction being implemented.

It is useful to look at lessons learned from individual ET cases from within and outside policing, the key details of which are often left buried in case findings unless picked up by the media. Two notable cases are Buchanan v The Commissioner of Police of the Metropolis (2016), and Ramphal v Department for Transport (2015). The case of Buchanan involved a police motorcycle officer who suffered serious injuries whilst responding to an emergency call, resulting in an extended period of sick leave. The case finding, won on appeal, was that the implementation of the Force’s unsatisfactory performance procedure (UPP) in relation to Buchanan’s sick leave had to be justified on an individual basis – in Buchanan’s case, the Force was found to have applied the policy unfairly in relation to a physical condition which met the criteria of a disability. In other words, when it comes to applying rules around performance and attendance, ‘one size doesn’t fit all’.

In the case of Ramphal – again won on appeal – a finding of unfair dismissal was found in relation to a misconduct investigation concerning the complainant’s expense claims. The Tribunal found that the manager appointed to undertake the investigation had initially found in Ramphal’s favour, but had allowed themselves to be unduly influenced by the Human Resources (HR) department, which ultimately led to Ramphal’s dismissal. The key takeaway from this case was that the role of HR in a fair and transparent disciplinary investigation should be limited to providing advice on law and procedure, and that the outcome decision by the investigation manager should be theirs alone and not swayed by the opinion of third parties.

The case of Crawford v The Chief Constable of Cumbria Constabulary is sadly typical of the experiences of some of our members, who have found their neurodivergent conditions to be viewed in a negative light in the workplace. In summary: PC Crawford had applied to be an Authorised Firearms Officer, having been supported by her managers and passing the pre-course assessments. The officer’s application was subsequently blocked by the Deputy Chief Constable, on the basis of an outdated ‘personal profile’ document drawn up when Crawford was first diagnosed as autistic and prior to her joining the Force as a regular officer. The DCC’s decision was found to be direct discrimination on the basis of the officer’s neurodivergency.

The Crawford case bears the hallmarks of confirmation bias: a decision-maker holding a belief – in this case that a neurodivergent colleague could not, or should not, perform a particular role – cherry-picking evidence to support their view and ignoring evidence to the contrary. Any disabled person who has interviewed for a position and found the interviewer more concerned with their disability rather than the qualities they can bring to the role will be familiar with this, as will disabled candidates who find themselves refused an interview despite meeting the role criteria.

Looking back over the cases we’ve been involved in and those reported in the media, the good news is that there doesn’t seem to be a common thread of police forces, locations or roles. If anything, the commonality in ET cases is randomness: individual managers making bad decisions, and officers and staff happening to fall foul of policies designed for neurotypical minds – in some cases after enjoying successful careers. The latter reveals a fact of life for neurodivergent professionals: no matter how successful and settled you may be, an unlucky change of circumstances – role, working environment, team or manager – can quickly lead to problems. The number of colleagues needing recourse to grievance procedures and legal action will hopefully drop as neurodiversity becomes better understood and accommodated in policing; however it may also rise due to an increased awareness of ND and willingness to challenge the status quo.

The Baroness Casey review of the workplace culture of the Metropolitan Police Service highlighted the negative attitudes towards disability – and, by extension, neurodiversity – that still exist in policing. Although understanding and acceptance of neurodiversity has progressed enormously since the NPAA launched in 2015, individual officers can still experience discrimination due to ignorance and stigma around neurodivergent conditions such as autism. Most would agree that employment tribunals are something to be avoided for all concerned; our advice to ND colleagues is to challenge poor treatment and negative attitudes at the earliest opportunity, and to use the resources of the NPAA, our sister groups the ADHD Alliance and Police National Dyslexia Association, and the Disabled Police Association, to educate and inform colleagues and decision-makers of the value of our neurodivergent talent. ∎

by Ross Campbell
Superintendent | Warwickshire Police

As I reflect on my 10 year anniversary as a diagnosed person with dyslexia – a topsy-turvy journey over which I’ve battled with my inner self and outside influences – I remember that I used to be a lone voice.

I have always been an open advocate for dyslexia and disability, but I never quite felt that my voice was fully heard. It wasn’t fully understood as a disability and my challenges were never properly understood, despite my openness to talk about them. I have blogged snippets for many years, slowly increasing my following, and I know I have influenced and inspired people slowly, but its incredibly humbling when a stranger comes up to me, or reaches out to me and says that I have had a positive impact on their lives, or their neurodiversity, or I am asked to give a talk. This is why I do it.

I’ve told probably over 1,000 people my story now – in person, through conferences and online sessions, and to countless others who have engaged with my dyslexia-focused social media page.

I have educated those who have asked me when it was I ‘caught’ dyslexia… “Is it contagious?” Or “How can ‘someone like you do a job like this’?”… and many others. This just shows, in 2023, how far we still have to go. I have people stumble over language around me when I talk about disability; quite frankly, so long as its not discriminatory or offensive, then I really don’t mind how people broach it. It’s the fact that we are talking about it that matters, and long may that continue.

At the time when I began my journey, I was by far one of the most senior people in policing talking about my dyslexia and showing that our amazing difference is not something that will hold you back. Now it is incredible to see so many others sharing their stories, of all ranks and grades right up to Chief Officer. This is absolutely amazing to see and I take my hat off to them, because I know how difficult it is to take that first step. When people see rank, they see success. We as dyslexics don’t see that a lot of the time: we see frustration, challenge, disadvantage, an un-level playing field, failure and buckets of self-criticism. For example, I have sat 10 promotion boards to get to Superintendent.

What portrays this visually is the brilliant image by Sylvia Duckworth, a Canadian teacher who depicts the ‘Iceberg effect’. For me, nothing could be closer to the truth.

When I left school, I did so with no qualifications. Since my diagnosis 10 years ago, I have been to university and achieved a first class honours degree, a master’s degree whereby I got a distinction in my final research project, and I have just started a PhD, for which I obtained a funded scholarship having presented my vision for future research in my specialist field. I have also managed to get promoted from Sergeant to Superintendent. The dyslexic kid done good! How have I done this? Well nothing has changed – my brain is no different, I just now understand how it works. I have an intimate understanding neurodiversity and psychology (through my academia) and I understand what my brain needs in order to work more effectively. It’s a bit like rewiring a fused short circuit.

Let’s go back to the iceberg for one moment. Above the water: wow, look at what I have achieved! – which of course I am absolutely proud of. But I have also spent a considerable amount of time beneath the surface, which is very difficult to come up from because it has a tendency to keep dragging you back down, like a strong current as you try and swim against the tide. On bad days you are trying to do that blindfolded, in a storm. Mental wellbeing is incredibly important for neurodivergent people: mental health can very quickly become a viscous cycle of self-destruction, because neurodiversity at its core can impact on emotion and behaviour.

There are lots of methods that can assist you with keeping your brain regulated with the positivity it needs, such as mindfulness apps, coaching and mentoring, and reading (or listening to audiobooks) on the subject. Also important is the right support in your workplace, the right awareness of neurodiversity, workplace adjustments, and of course, a fundamental shift in culture.

I have, during my time, thankfully been able to influence change in process and policy both locally and nationally; and in my Force, I have a great Chief Officer team who really do ‘get it’. We revolutionised reasonable adjustments for promotion processes in particular, and were very early adopters of policy and practice I now see embedded nationally. That said, there is still a long way to go, and I know we don’t get it right every time. Every time we don’t, that impacts on a person, just like you and me. So we need to listen, learn and continue to share experiences.

I am seeing the increasing number of support groups appearing for neurodiversity both locally and nationally, and there are some really exciting things on the horizon. There are also working groups actively leading and influencing change nationally, across all of the key policing stakeholders and partnerships.

My next adventure is navigating the pathway to an ADHD diagnosis. Again, I have read so many stories around people’s experiences and reflections as they have embarked and progressed on this journey, that I now set out myself with less fear that I may have felt without them. I will write about this as it progresses.

My once lone voice is now echoing off the walls – it’s amazing to see, and long may it continue. We all need to keep encouraging people to speak up because their voice isn’t a lone one; and together, as a community we can continue to do great things. ∎

To mark the start of this year’s World Autism Awareness Week, we share a blog by Superintendent Marc Attwell on how being autistic has helped him in his policing career

I’m Marc Attwell and I am a Superintendent in South Wales Police. I also happen to be autistic, or what used to be referred to as Asperger syndrome.

I, like Commander Dobinson from the Metropolitan Police and others, did not discover I was autistic until late in life. In fact I discovered I was autistic only a few short years ago.

I still remember it now: suddenly it made a lot of sense. All the things I had struggled with, and all of those I found easy, were explained to me by a consultant psychiatrist. While incredibly liberating, it was also upsetting as now there was a real reason as to why I was the way I was.

There is a common myth that those of us who are autistic lack empathy and don’t feel emotions. In fact, those of us on the autistic spectrum often care deeply about the feelings of others and ourselves. The problem is that we often struggle to make sense of the social cues, which are often very subtle, such as facial expressions, body language and other non-verbal communicators. For me, emotional intelligence is very much learnt, rather than being innate as it is with many of my colleagues.

Another common myth is that people on the autistic spectrum are geniuses. We might be, but invariably we’re not. The media is full of stories and films about the autistic savants: the chess prodigy or the mathematical geniuses à la Rain Man. What we do often have are intense interests and passions, and some of us make a career out of pursuing those passions.

An issue that I, like many adults who discover they are autistic late in life, had was that the system to diagnose is primarily geared towards children and mainly from an educational development perspective. For adults like I who had spent a lifetime developing ‘masks’ and systems to cope with living in a neurotypical world, the diagnostic tools used by psychiatrists aren’t where we need them to be, but things are improving.

For all the challenges I can sometimes experience, the benefits of being autistic far outweigh them and bring great benefits to my role as a senior leader in policing.

I have a very non-standard way of learning, which has at times caused great difficulties with the more traditional learn by rote methods still employed in some parts of policing. However I do find that providing that I am interested in a subject that I can pick it up and learn it very quickly and to a high standard.

I have a real passion for the detail and enjoy deep thinking.  When our job is to examine how a system operates and how we as a police service can best protect our communities this is a real strength.

Like other police officers who are autistic, I have a fearless approach to decision making. This doesn’t mean that I am cavalier or take unnecessary risks. Instead, I am able to very swiftly distil the essential from the non-essential and form decisions whether that is leading a public order deployment as public order commander, as a Strategic Firearms Commander or making decisions about the corporate and organisational matters that are part of the daily business of being a senior leader in a Basic Command Unit.

Policing provides me with the environment I need to thrive as a person. I enjoy operating in chaotic environments but only so I can impose order and routine on them.  I enjoy being organised and take great pride in noticing the detail that others often do not. These are all qualities that are prized in policing.

However, policing is still not without its challenges for me. I struggle in social situations and therefore the traditional interview processes can be overwhelming. I have to work hard to read peoples’ emotions and I struggle to sometimes understand the shades of grey that we sometimes have to operate in – something is either right or wrong to me.

Being aware of my condition allows me to manage this and to contribute fully wherever I can. It also allows my colleagues, friends and loved ones to understand me better.

I am proud to be wired different to most other people, and if you are wired differently too then I encourage you to be proud of that difference as well.

We can add so much more to policing if we are able to be ourselves and contribute our fullest potential.

Most police forces now have neurodiversity support networks and champions, and the National Police Autism Association isn’t just providing a place for those who are neurodivergent to gather, but also a national voice for improving policing for those within it, and for the communities that we have all sworn to protect. ∎