When tribunal headlines close doors: The case for confidence-led NeuroInclusion

The growing visibility of neurodiversity-related employment tribunal cases is creating an uncomfortable tension in workplaces.

On one hand, people who have been misunderstood, excluded or denied reasonable support must be able to challenge unfair treatment. Access to justice matters. Employment tribunals can expose where processes have failed and can push organisations to take disability inclusion seriously.

On the other hand, we need to be honest about an unintended consequence of the way these cases are discussed.

If employers repeatedly absorb the message that neurodivergence equals legal risk, complexity or potential litigation, some will become more cautious about hiring neurodivergent people at all. Not openly, perhaps. Few employers would say, “We do not want to employ someone with ADHD, autism, dyslexia or another neurodivergence.” But risk-aversion is rarely that explicit.

It can appear in quieter ways.

A hiring manager may choose the candidate who seems less complicated. A recruiter may interpret disclosure as a warning rather than useful information. A manager may avoid asking questions for fear of using the wrong words. An organisation may become so anxious about getting things wrong that it delays conversations, relies on policy rather than relationship, or avoids employing people it assumes will need “too much” support.

That is how doors close.

The BBC’s recent reporting on neurodivergence and employment tribunals makes this risk explicit. Professor Amanda Kirby warns that rising tribunal cases may contribute to hidden bias in recruitment, with employers deciding that neurodivergent people are too risky and finding another reason to appoint someone else. That should concern everyone who cares about belonging at work — employers, HR professionals, managers, neurodivergent employees and advocates alike. BBC

The answer is not to silence tribunal cases or deny that discrimination happens. It is to talk about them with more precision, less fear and more maturity.

The Lidl case does not mean rules no longer apply

Take the tribunal involving former Lidl deputy store manager Ryan Toghill. Headlines may lead readers to conclude that an employee with ADHD was excused for breaking a workplace safety rule. That is not what the tribunal found.

Mr Toghill used a powered pallet truck without the required authorisation. The tribunal accepted that Lidl was entitled to regard unauthorised use of that equipment as potential gross misconduct. The safety standard was legitimate. The conduct concern was real. Employment Tribunal judgment

The issue was the way the disciplinary process was handled.

The tribunal found that Lidl had not adequately considered how Mr Toghill’s ADHD affected his communication and ability to participate in the hearing. It found that behaviour interpreted as a “lack of remorse” was connected to disability-related communication differences. It also found failures around reasonable adjustments, including suitable breaks and preparation for conducting the disciplinary hearing in an accessible way. The dismissal was found to be unfair and discriminatory in part, not because the employee was beyond accountability, but because the process and the interpretation of his behaviour were not fair enough. Personnel Today and Thrive Law

That distinction is essential.

Neuroinclusion does not mean that safety rules disappear. It does not mean that performance expectations cannot be set. It does not mean that managers must tolerate poor conduct or avoid difficult conversations. It means that people should have an accessible, respectful and fair opportunity to understand expectations, explain what happened and respond when there is a concern.

The standard can remain the same. The route to meeting it may need to be more thoughtful.

Fear is not inclusion

For many neurodivergent people, disclosure is already a difficult calculation.

They may ask themselves:

• Will people see me as less capable?
• Will this affect my promotion prospects?
• Will my manager understand the difference between a need for support and an inability to do the job?
• Will colleagues treat me differently?
• Will I be judged through stereotypes rather than on my actual contribution?

Research and workplace commentary consistently point to stigma and fear of negative reactions as barriers to disclosure. A 2025 article in Frontiers in Psychology notes that early disclosure can improve equity in recruitment, selection and retention, yet many people hesitate because they fear stigma and negative reactions. It argues that employers should not make disclosure the only path to support; instead, they should also build inclusive practices into everyday work. Frontiers in Psychology

This matters because late disclosure is often misinterpreted.

When people do not feel safe disclosing early, they may mask their difficulties, struggle in silence or try to manage without support. By the time they raise a need, a performance issue, absence, conflict or disciplinary process may already be underway. The conversation then begins under pressure, with the employee feeling exposed and the manager feeling defensive.

Nobody benefits from that.

A workplace that is serious about inclusion should not require someone to reach crisis point before it becomes possible to have a supportive conversation.

We need to move beyond the “us and them” story

There is a danger that public debate becomes polarised.

Neurodivergent people may feel that they must fight constantly to be believed. Employers and managers may feel that they are being portrayed as uncaring or incapable. “Neurodivergent” and “neurotypical” can start to sound like opposing sides in a workplace conflict.

That framing is damaging.

Most neurodivergent people do not want special treatment. They want to be respected, understood as individuals and enabled to do good work. Most managers do not want to discriminate. They want clarity, practical tools and confidence to manage fairly. Most HR professionals are trying to reconcile legal duties, operational realities, employee wellbeing and consistent standards.

The problem is not that one group is inherently against another. The problem is that many workplace systems were designed around a narrow idea of what a competent employee looks, sounds and behaves like.

We too easily confuse eye contact with engagement, fast verbal responses with understanding, a warm tone with respect, and a particular style of communication with honesty or remorse. We sometimes treat the ability to navigate an inflexible process as evidence of ability to do the job itself.

These assumptions can disadvantage neurodivergent people and they can also lead managers to make poor decisions.

Equal standards do not require identical treatment

One of the most persistent myths about reasonable adjustments is that they lower standards or create unfair advantage.

They do not.

A reasonable adjustment is not a waiver from accountability. It is a practical step that removes or reduces a disadvantage so that a person can participate fairly and demonstrate what they can do.

For example, in a performance, conduct or disciplinary conversation, this might involve:

• providing written information in advance;
• using clear, specific language rather than implication or ambiguity;
• allowing time to process questions and prepare answers;
• building in breaks;
• checking understanding rather than assuming it;
• avoiding conclusions about attitude based only on tone, facial expression or eye contact;
• offering a preferred communication format where practical;
• seeking appropriate advice when a disability may affect participation in the process.

None of this prevents a manager from addressing a serious issue. None of it means a person can ignore a safety rule. None of it removes the need for evidence, consistency or proportionate decision-making.

It simply makes the process more likely to reach a fair decision.

The principle is straightforward:

Inclusion is not the absence of standards. It is the presence of fair and accessible ways for people to understand, meet and be held accountable to those standards.

The response should be confidence, not caution

The goal should not be for employers to become frightened of neurodivergence. It should be for them to become more capable.

Managers need confidence to have early conversations. They need permission to ask respectful questions. They need practical guidance on how to distinguish between an essential job requirement, a workplace preference and an avoidable barrier. They need to know that being kind does not mean avoiding accountability, and that being accountable does not require being rigid or dismissive.

Employees need confidence that disclosure will open a supportive conversation, not create a permanent label or a reputation for being difficult. They need to see that adjustments are considered individually, that standards are explained clearly, and that their strengths are as visible as their needs.

Organisations can help by making good practice ordinary rather than exceptional:

• Make job adverts, recruitment processes and onboarding accessible by default.
• Offer clear instructions, agendas, written follow-up and flexible ways to participate to everyone where possible.
• Make it clear that disclosure is voluntary and that support can be discussed without forcing people into labels.
• Train managers to have human conversations rather than handing them a list of diagnostic stereotypes.
• Establish clear routes for discussing adjustments early and informally.
• Apply conduct and performance processes consistently, but flex the process where an individual’s disability creates a disadvantage.
• Measure whether people feel psychologically safe, rather than assuming a policy means that they do.

A more universally accessible workplace benefits far more people than those who formally disclose a diagnosis. Clear communication, predictable expectations, flexible work design, thoughtful meeting practices and respectful management are good management for everyone.

The real risk is closing the conversation

Tribunals should be a last resort, not the main engine of workplace change.

When a case reaches a tribunal, the relationship has usually already broken down. Whatever the legal outcome, it is rarely a sign that the workplace has succeeded in creating trust, belonging or early resolution.

We should learn from the cases without turning them into stories that increase fear.

If the only lesson an employer takes from tribunal headlines is, “Do not employ neurodivergent people,” then the headlines will have reinforced precisely the exclusion that inclusion efforts are meant to challenge.

If the lesson is, “Set clear standards, listen earlier, design fairer processes and equip managers to lead with confidence,” then the conversation can open doors instead.

The future of Neuro-Inclusion cannot be built on anxiety, not anxiety from employees about disclosure, and not anxiety from employers about liability.

It must be built on trust, clarity, fairness and shared responsibility.

People should not have to hide in order to belong. And managers should not have to fear in order to lead.

References

The tribunal

• Full employment tribunal judgment: R J Toghill v Lidl Great Britain Ltd — corrected judgment
  The primary source. It is important because it confirms that the tribunal accepted unauthorised use of the powered pallet truck could properly be treated as gross misconduct. The successful claims centred on the fairness of the process, disability-related communication differences, reasonable adjustments at the disciplinary hearing, and the decision-making around dismissal.
• BBC: ADHD has rewired the workplace. This is what it means for bosses and workers
  Useful for the wider context. Crucially, it includes Professor Amanda Kirby’s warning that growing tribunal visibility could contribute to hidden bias in recruitment: employers may conclude that “these people” are risky and find another reason to appoint someone else.
• Personnel Today: Lidl worker unfairly dismissed with ADHD awarded £45k
  A clear professional-HR summary of the case, including the tribunal’s view that the safety rule was legitimate but that Lidl did not sufficiently account for the employee’s disability during the disciplinary process.
• Thrive Law: Case Summary: R Toghill v Lidl Great Britain Ltd
  A detailed summary of the case findings, including the failure to seek advice on conducting the hearing and to provide adequate breaks or thinking time.

Sources supporting the wider argument about disclosure, stigma and access to work

• Frontiers in Psychology: Moving beyond disclosure: rethinking universal support for neurodivergent employees
  A peer-reviewed article. It supports the point that people may hesitate to disclose because of stigma and negative reactions; it argues for a balance between voluntary disclosure, personalised adjustments and inclusive practices available to everyone by default.
• Lexology / Morton Fraser MacRoberts: Neurodivergence in the workplace: Challenges, tribunals, and how employers can help
  Useful for the employer perspective: it notes increasing claims, the challenge of non-disclosure, and the importance of creating an environment where people can speak openly before matters escalate.
• Forbes: Why Neurodivergent Employees Still Fear Disclosure At Work
  Reports survey findings that many neurodivergent employees still fear disclosure, stigma and uncertainty about where to obtain support. Use this as reporting on survey data rather than as peer-reviewed research.
• CareScribe: The Ultimate Guide to Neurodiversity in the Workplace
  Cites survey findings suggesting many employees fear discrimination from managers and peers, and connects psychological safety with disclosure and access to support.