A recent Employment Tribunal decision has provided clarity on the distinction between legitimate performance management and harassment or disability discrimination. The ruling serves as a timely reminder that, when carried out appropriately and with a genuine aim of improvement, performance-related feedback is necessary.
Background
Thomas Shevlin began employment as a senior HR Operations Manager at John Wiley & Sons in May 2022. During a performance review, his Line Manager, Rebecca Roycroft, reported that while she understood Mr Shevlin was very busy and has a tendency to rush the work he is doing, the resulting errors were not good for his personal brand when dealing with global stakeholders as it can be seen as messy work.
Mr Shevlin alleged that these comments left him “humiliated and ashamed” and they amounted to discriminatory treatment based on his ADHD and dyslexia traits. He claimed that the feedback left him feeling devastated and prompted his resignation, although he had secured another job. He then subsequently then brought an Employment Tribunal claim against John Wiley & Sons for disability discrimination.
The company denied discrimination, arguing that to the extent that Ms Roycroft referenced typos in his performance rating, was for his personal development. Significantly, Mr Shevlin had never informed John Wiley & Sons about his disability and therefore, no unfavourable treatment had occurred.
Decision
The hearing was held at the East London Hearing Centre. The Employment Tribunal ruled that Mr Shevlin’s claims of discrimination, because of something arising in consequence of disability and harassment related to disability, were not well-founded and were dismissed. The Tribunal found that:
- Mr Shevlin relied on a single psychological report which did not diagnose dyslexia or confirm any “dyslexia traits.” Crucially, the report did not link Mr Shevlin’s spelling or grammatical issues to his ADHD or any other mental impairment. He had failed to establish that his performance issues were caused by his ADHD.
- Ms Roycroft’s comments were accurate, constructive and made in the context of professional development.
- There was no unfavourable treatment as Ms Roycroft’s feedback was legitimate and proportionate.
- There was no harassment as Mr Shevlin’s reaction was considered unreasonable and the conduct did not create a hostile or degrading environment.
- Ms Roycroft’s comments do not begin to approach the very high threshold for harassment.
The Tribunal made a point to note that “if a manager cannot be explicit about a weakness in performance, there is a risk that an entirely well-meant warning will not be taken onboard by the employee”.
Lessons for Employers
This decision is a reminder of key principles for employers that include the following:
- An employee must provide cogent medical evidence to establish a causal link between the alleged disability and any workplace issues.
- Employers must have actual or constructive knowledge of the disability in order to be liable under the Equality Act 2010.
- Reasonable and proportionate performance management, particularly where feedback is well-intentioned and factually accurate, is unlikely to amount to discrimination or harassment.
Employers have been reassured that when performance concerns are raised appropriately, such conduct will not amount to harassment or discrimination even where an employee may feel criticised. Nonetheless, employers are advised to remain sensitive when handling performance concerns, particularly where there may be underlying medical issues.
How we can help
For further information or to discuss the issues raised within this case such as managing performance reviews, please contact us to speak to a member of our Employment Team.
