Unequal opportunities: what we can learn from employment tribunals

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. ∎

‘You can’t have an autistic cop with a gun!’

T/Inspector Gav Skevington

‘You can’t have an autistic cop with a gun.’ Temporary Inspector Gav Skevington has heard it many times before.

Gav is Nottinghamshire Police’s Chief Firearms Instructor. He’s also autistic and is sharing his story for Neurodiversity Celebration Week to help break down barriers, and to support neurodivergent colleagues and those who want to enter policing.

Gav said: “I’m the Chief Firearms Instructor and I’m autistic, so straight away people’s alarm bells go and they say ‘You can’t have an autistic cop with a gun’.

“Well, they’re wrong.

“Exactly the same as neurotypical people, neurodivergent people are fit for roles as long as we’re given the right opportunities and support.”

Gav added: “If it wasn’t for the way my brain works I wouldn’t have been as good an Operational Firearms Commander as I was.

“I can look at problems in a different way.

“There are the positives and negatives of every element of it.

“I can switch off emotion really well, which for a job that’s high risk is brilliant.”

Gav said he always knew he was autistic but it wasn’t until later in life that he was diagnosed.

Describing himself as being ’36 years in denial’, he said it was only when his children displayed signs that he decided to do something.

“I did everything to build a mask around me where I’d fit in and I didn’t have to talk about it,” he said.

“It wasn’t until my own children started to show signs that I had to look in the mirror and say to myself to get it sorted and stop being selfish.

“When I disclosed it to work, I sat in the car park for ages trying to work out how to say it. I looked in my rearview mirror and said ‘I’m Gav and I’ve got autism’. Saying it to myself was a huge step for me.

“I remember going to my own Chief Firearms Instructor and saying ‘This is the diagnosis I’ve got’ and expecting to lose my firearms authorisation. But I didn’t.

“I got overwhelming support, which was brilliant for me.

“The moment that happened was a turning point for me because I could say I’d achieved all of this in the firearms world – I was five years in firearms at that point.

“I’d been an Operational Firearms Commander, a Tactical Rifle Officer, an instructor, and I did that despite, or because of the fact I’m neurodivergent.”

Gav is part of Nottinghamshire Police’s Neurodiversity Working Group. It’s been running for three years.

“It’s chaired by Inspector Nick Wood, who comes from a dyslexia point of view,” Gav said.

“We’ve got Inspector Adam Pace, who comes from the managerial support side. I come from an autism point of view.

“We’re trying to find the best ways we can encourage neurodivergent members of staff to come forward, and provide them the necessary support.

“It’s not just neurodivergent individuals, or people who think they are, or who are going through that process who come to us. We’re getting line managers coming for some advice.

“More people are open and willing to talk about it.

“We want to lead from the front and share those experiences that will break down people’s natural barriers.”

Gav said that more people in the Force were contacting the group for advice, and that it was trying to build a network of support for officers and staff.

“If I go to give a talk, afterwards I’ll have a flurry of emails, which is great,” he said.

“Our group’s concern is that we’re doing this on top of the day job and will have people reaching out to us on the verge of crisis or going through bad times.

“We’re trying to build those mechanisms to show that as a neurodiversity group we’re here to support you, to guide you through a diagnosis process and those sorts of things.

“And it’s then signposting to other services like wellbeing support, EAPs, so that we don’t hold it all. It’s joined up.”

He said that people could also turn to national groups – the National Police Autism Association, the ADHD Alliance, and the Police National Dyslexia Association.

“If people don’t want to talk in their own Force there are those national forums where they can get advice,” he said.

“If it wasn’t for the way my brain works I wouldn’t have been as good an Operational Firearms Commander as I was.”

T/Inspector Gav Skevington

The Nottinghamshire Police’s Neurodiversity Working Group’s work has led to Gav being invited to sit on the College of Policing’s Neurodiversity in Specialist Operations Policing Group.

And he said that policing needed ‘central guidance’ that Forces could draw on and would provide consistency across the service.

“I’ve spoken to Forces who have two people in a room who are the neurodiversity contact on top of their day jobs,” he said.

“We’re lucky here. Yes we do it on top of the day job but there are a number of us who can spread that out.

“Other Forces have huge groups and have conferences and events, and it’s that inconsistency. We need a central drive.

“In Nottinghamshire we have a really good connection with chief officer level. Deputy Chief Constable Steve Cooper welcomes the Neurodiversity Group into a bi-monthly meeting where we talk things through.

“Having that connection to the ‘top corridor’ is really good because you feel listened to and empowered.

“But I think that on a national level we need that input to steer us in the right direction.”

Away from policing, Gav runs a clothing line and writes fiction books, which are about empowering people.

“Over 18 years of policing I spent the first 13 trying to fit in, trying to fit that mould and expectation of what Gav the firearms cop should be,” he said.

“Then there’s the little man inside me saying that’s not me.

“It’s only as I’ve got more confident that I’ve been able to change that.

“The mask still goes on but I am a lot more comfortable with me as a person.

“I’ve had to challenge that, realise my blockers, the biggest one of which is me.

“My fiction books are about characters who have to accept themselves and realise they are their only limit.

“If you internalise it, you’re the one stopping yourself.” ∎

This article was originally published on the Police Federation of England & Wales website as part of Neurodiversity Celebration Week – it is reproduced here with kind permission of the author

My diagnosis diary (part 3)

by Superintendent Paul Burrows
Disability Lead | Police Superintendents’ Association

As I write this, my third diagnosis blog, I’m still waiting to hear back from the assessment clinic for a date when I can have a chat! Even though I am going private, it’s like I can’t give my money away. Regardless of this minor hiccup, it gives me an opportunity to discuss my upcoming assessment for ADHD. Like my blog on autism, I will make you aware of the questions posed; if nothing else, it will give an insight into the process and how someone like me thinks and acts.

Supt Paul Burrows

The Adult ADHD Self-Report Scale comes in two parts. Part A has six questions covering my behaviours in the last six months. If I score four or more then I should proceed to Part B which has 12 further questions.

The way to score a point on each question varies, though the scale remains the same: Never, Rarely, Sometimes, Often or Very Often. At the risk of giving the punch line away, I scored six out of six on Part A.

To the questions…

Question 1: How frequently do I struggle wrapping up the final details of a project once the challenging parts have been done? Well, absolutely, always! I love the deep thinking required to understand a project and planning a course through to delivery. But once the hard bits have been done, my interest can wane. I am not a completer finisher. Project end reports and benefits realisation reports are all a struggle. I’ve done the heavy lifting, it is time to pass over to someone with finesse!

Question 2: Do I struggle to get things in order when I complete a task that requires organisation? This would be a very weak yes! I spend a lot of time thinking about a project, but also certainly find myself obsessing over whether I am presenting information in a logical order. My view on what a logical order is, isn’t always the same as others!

Question 3: Whether I struggle remembering appointments or obligations. I absolutely struggle to remember appointments and must use my phone to constantly set diary reminders, even for in an hour’s time. I am not sure if this is down to age or just whether I get lost in a task with my hyper-focus (one of my autism traits). I am however time-obsessed, so the thought of missing something haunts me. I have said on far too many occasions that if I am late, you know something has happened. I have to remind myself all the time of where I am meant to be, but I do not miss obligations – if I say I am going to do something, I will – whatever it takes. I am loyal to a fault and the thought to letting someone down just couldn’t be countenanced.

Question 4: Do I avoid starting projects that require a lot of thought? Yes and no! I tend to map projects out in my head before I start and always start well in time, so am usually well ahead of any timetable. Compared to others do I prevaricate? Probably not. But I do work to a different regimen. If I am set a task, it needs completing yesterday, so even today is too late. I think this is a perverse mash-up between my autistic self and (possible) ADHD self.

Question 5: Do I fidget with my hands or feet when I sit down for a long time? Well in my world, five minutes is a long time, so yes absolutely! This is one of the key learning points I feel both the police service and society as a whole needs to take on board. Sitting in meetings for hours without a break may feel time efficient; however, I would argue it is not time effective. When I run neurodivergence training with colleagues, we will set a timer and break every 25 minutes for five minutes. It is simply amazing how much more engaged everyone is. Why don’t we do this in meetings? The more self-reflective question is, when I chair meetings why don’t I do it? I think the only answer is that I still feel it is not something that is yet widely acceptable.

Further to this is seating position, doodling and leg bouncing. I will always, given the choice, sit at the back of a room or to the edge of a room so I’m not hemmed in. This is so I can twist and turn in my seat as much as I need to without distracting people. Others will displace energy by doodling. I’m not a doodler myself; for many however, doodling is a sign they are paying attention to what is being said, not the opposite. It’s like fidget-spinning: these devices will be deployed to retain focus, not as an indicator that I am not paying attention. My fidget-spinner comes in the form of solitaire. If I’m commanding a football match and I start playing solitaire, it means that I have 100% focus on what is happening operationally, the distraction distracts the distractions – I hope that makes sense.

As to the leg bouncing: the problem many neurodivergent people face is that it is not yet socially acceptable to get up and walk around in meetings, or indeed have meetings that are held outside whilst walking around. Noisy places can also be really calming – it’s like white noise. I have a friend who will hold most of her meetings in coffee shops because this is where she best concentrates. I don’t feel however that we are anywhere near the position yet where this type of activity is seen as being normal.

Question 6, the final question from the initial set: how often do I feel overly active and compelled to do things, as if driven by a motor? I am quite simply metronomic. I must have a purpose each day. I need a list of jobs to do, and I can’t relax until they are done. I can’t abide prevarication – why put off something that needs doing, do it. The thought of spending a day doing nothing frightens me, as does wasting time. Is it easy to live with? No, it isn’t. We are hearing more and more about top achievers who have ADHD – particularly sports people – and my sense is that our understanding of this is only at the tip of the iceberg. It is that drive that ADHD can give you that spurs you on when others may quit.

If I score four or more I should progress to Part B. I scored six, so onward for a further 12 questions. The scale remains the same: Never, Rarely, Sometimes, Often and Very Often.

Question 7: How often do I make careless mistakes when I work on a boring or difficult paper? I make careless mistakes in interesting and easy work. Though that may be my dyslexia. I must read an email four or five times when I am replying, to make sure I’m covering every point and question in it. I don’t tend to make mistakes of substance, because I have thought through the logic of what I am recording, whether I am recording what I am thinking is sometimes the challenge.

“It is a key learning point that the physical environment is critical if you are to get the best out of those you lead and manage.”

Supt Paul Burrows

Question 8: Do I struggle keeping my attention when doing boring or repetitive work? Yes absolutely. If an email comes in, then that will be answered first. If another more interesting task comes in, then that will be dealt with first. However, the task will always be done in timescale and to the best of my ability – it just might take longer than it should to complete.

Question 9: Do I struggle to pay attention to people when they are speaking to me to me directly? Yes, particularly if I am distracted by something else that is on my mind. This is without doubt one of my greatest failings.

Question 10: How often do I misplace things or have difficulty finding them at home or at work? Well, I don’t know! I live such a minimalist existence with no ornaments, plants, clutter or anything on a surface that it would, in fact, be a tremendous achievement to lose something. Everything has its place and it needs to be there. If it can be thrown away, it will be. This is where my autism overtakes my potential ADHD. By way of example, at home the toaster has to be in a drawer and if it made sense, the kettle would be in there with it. Well, it keeps me calm! It also makes cleaning much simpler.

Question 11: How often am I distracted by activity or noise around me? The best example is that I was seeing a counsellor recently and got fixated on a gap in the wallpaper where it was coming apart. I mentioned this at the end of the session, and they agreed that because I’m autistic they would do something about it. If I hadn’t been, they wouldn’t have! I am constantly distracted by noise and will invariably be the first person to point it out – at which point everyone else starts to notice it. It is a key learning point when managing others that the physical environment is critical if you are to get the best out of those you lead and manage.

Question 12: How often do I leave my seat in meetings or other situations when I am expected to remain seated? I don’t, although I want to in every meeting. The trouble is our etiquette means that we simply don’t do this. Consequently, I’m left squirming on my seat every minute or so, adopting different potions akin to Rodin’s Thinker, trying to expend my excess energy. The trouble is this movement is often seen as me being disinterested. It’s not – I simply can’t sit still. The other position I adopt when typing is sitting at my desk with my trouser legs rolled up. For some reason that calms me – you won’t be surprised to know I live in shorts!

Question 13: How often do I feel restless or fidgety? Constantly, 24/7 – I can’t sit still. My idea of a holiday is constant movement, driving or walking from one place to another. Sitting by the pool or waiting for the next meal is purgatory. In fact, anything other than constant mental stimulation is purgatory, even if that stimulation is the next cow passing the window of the vehicle I’m in.

Question 14: How often do I have difficulty unwinding and relaxing when I have time to myself? Constantly. I’m like a wound spring – I must be tired physically and mentally to be able to even begin to relax. I can’t settle to TV programmes, and will watch even a 20 minute episode of a comedy programme in three or four sittings. It gets worse when I sleep. I always fall asleep easily, but then wake up between six and ten times a night – I know because I have an app that tells me.

Question 15: How often do I find myself talking too much when I’m in social situations? I don’t. Again, this is where my autistic self comes to the fore. Put in front of hundreds of people to give a talk/speech – no problem, in fact I actively enjoy it. Put me on a table or in a room of four or five people that I don’t know, and I clam up. It is why I always sit at the back of a room as it is the best place to be anonymous. I don’t go to parties, Christmas do’s, retirement do’s. I love rugby, but the thought of going to watch an international match sends cold shivers down my spine. Too many people, too little control of my environment. It is one of the great regrets of my existence.

Question 16: When I’m in conversations, do I finish other people’s sentences before they can? Shamefully yes – I get bored too easily, join the dots (not always correctly), and then finish the other’s response. It Is not something I am proud of and do my best not to do it, but it is again one of my greatest flaws.

Question 17: Do I struggle to take my turn when turn-taking is required? Yes, queues do my head in. I am impatient to a fault. I will regularly leave a queue even with two or three people in it because I don’t have the patience to wait. People who get to the till in a shop and don’t have their card ready to pay, drive me to the point of distraction. I spend so much time planning in my head (autism over ADHD) that it drives me potty when others don’t. The flip side and downside of this is that spontaneity at home can be hugely challenging for me. The challenge of highly dynamic public order situations where I have to think on my feet is engaging and something I thrive at, though perhaps because I spend so much time thinking about what I would do in a given circumstance.

Question 18: How often do I interrupt others when they are busy? I would love to, but I don’t. I have learned that this really isn’t socially acceptable, though if someone’s office door is open, I will see this as an invite to speak to them. Otherwise, I will leave well alone.

There is no score threshold for Part B – the assessment awaits!

I hope by listing these questions and my responses, I’m giving an insight into the assessment process, but also into the reactions of someone who may well have ADHD. There will be many of your colleagues who can and will respond similarly – so my challenge to us all, is how do we change our way of doing business so that we can become more inclusive? ∎

This blog was originally published on the PSA website as part of Neurodiversity Celebration Week – it is reproduced here with kind permission of the author