ADHD dismissals

For UK employers, managing employees and workers with ADHD presents a growing legal risk. The rise in ADHD diagnoses, coupled with an increase in claims from employees alleging disability discrimination on the basis that their ADHD is a disability, means HR teams and managers must carefully balance business needs against their obligations under the Equality Act 2010.

While ADHD in itself does not prevent dismissal, employers who fail to consider its impact may face claims for unfair dismissal under the Employment Rights Act 1996, a failure to make reasonable adjustments, and discrimination arising from disability under sections 15 and 20 of the Equality Act 2010 respectively. The risk is particularly acute where an employee is dismissed because of poor concentration, missed deadlines, or impulsive behaviour connected to ADHD.

Disability Status Under the Equality Act 2010

ADHD is not automatically a disability. Under section 6 of the Equality Act 2010, an individual must show that they have a mental impairment that has a “substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. “Substantial” means more than minor or trivial, while “long-term” generally means that the effect has lasted, or is likely to last, at least 12 months.

The test about whether an employer has knowledge of the disability is also a key area of dispute that can arise with respect to many disabilities, but it would appear increasingly so in connection with ADHD. Employers can be liable for disability discrimination where they have:

  • actual knowledge of the employee’s ADHD; or
  • constructive knowledge, where they ought reasonably to have known about it.

This makes early investigation and occupational health involvement essential. This can be difficult where an employee only suspects that they have ADHD and has not yet received a formal diagnosis, which is commonly the case given that there can be considerable waiting times to see relevant specialists through the NHS. As result, we are seeing more cases where individuals pay for a private diagnosis.

When can an Employer Fairly Dismiss an Employee with ADHD?

An employee with ADHD can still be dismissed for:

  1. capability, such as poor performance or ill health; or
  2. misconduct; or
  3. redundancy; or
  4. some other substantial reason.

However, employers should first:

  • obtain occupational health evidence;
  • consider reasonable adjustments that the employee’s ADHD may require, including flexible working or changes to tasks;
  • consult with the employee;
  • explore alternative roles or redeployment;
  • assess whether ADHD contributed to the issue.

This applies even if the employee has fewer than two years’ service, or six months’ service from 1 January 2027. Failure to follow this process is often the reason employers lose claims, rather than the dismissal itself.

How Employers can Reduce Risk and Defend ADHD Dismissal Claims?

Employers can significantly reduce the risk of ADHD-related discrimination and unfair dismissal claims by taking a proactive and well-documented approach to managing performance, conduct and capability concerns. Key steps include:

  1. Training managers on ADHD and Equality Act obligations.
  2. Making early referral to occupational health.
  3. Investigating the link between ADHD and the workplace issues.
  4. Considering and documenting reasonable adjustments, including consultation with the employee about those adjustments.
  5. Assessing alternatives to dismissal.
  6. Maintaining detailed records, including of meetings with the employee to discuss the issues, evidence, adjustments, and alternatives to dismissal.

Conclusion

ADHD-related dismissals require more than a standard disciplinary or capability process. Employers do not need to retain underperforming employees indefinitely because they have ADHD. However, they do need to demonstrate that disability issues were properly understood, reasonable adjustments were considered, and any dismissal decision was fair, proportionate, and evidence-based. That is often the difference between a defendable dismissal and a costly Employment Tribunal claim.

If you need assistance defending a disability discrimination claim arising from an employee’s ADHD, please contact us. More details about our Tribunal work can be found here.