Lidl worker with 'rejection sensitivity' wins unfair dismissal claim

A supermarket worker who has ADHD was unfairly dismissed and subjected to unfavourable treatment due to his disability, a tribunal has ruled.

Ryan Toghill worked for Lidl in Newport as a deputy store manager. In 2022, he was diagnosed with ADHD and as part of his condition he experiences rejection sensitivity.

Rejection sensitivity is an intense emotional and psychological response triggered by perceived or actual rejection, criticism or disapproval.

At the warehouse for the Newport store, employees would use powered pallet trucks. They were subject to strict rules on their use as they are heavy, powerful pieces of equipment weighing around a tonne.

Every six months staff would be required to attend refresher training on using the trucks, but Toghill told the tribunal it was commonplace for employees to use them without updating their training.

In July 2023 he was diagnosed with a hernia and transferred to a different store in Ystrad Mynach. He continued to use the trucks despite this being dangerous due to his hernia, and an investigation was launched.

Toghill was then signed off sick with stress and anxiety for four weeks, and was invited to a disciplinary meeting in August 2023.

At the meeting, he asked for his partner to attend as a disability advocate, but she had recently undergone surgery and could not. He asked for it to be adjourned but was told that because it had already been postponed, it could not be again.

Toghill felt the meeting was conducted in a "hostile manner" despite him having previously stated in a flexible working appeal that his ADHD meant he had difficulty coping with formal meetings.

He accepted that he had used the trucks on multiple occasions and that he knew they should not have. The meeting was adjourned for nine minutes, after which he was summarily dismissed.

In a letter confirming his dismissal, he was told he had withheld information, that there was a lack of remorse, and there had been a clear breach of trust by using the trucks, so a final warning was not appropriate.

He appealed his dismissal, which led to an offer to redeploy him as a shift manager (a demotion) and put him on a final warning. He did not accept the offer.

The judge said that Lidl did not fully appreciate he had ADHD and side effects of it, so mistakenly thought he was showing a lack of remorse.

Employment Judge Moore ruled that Lidl failed to take into account Toghill's disability. His ADHD and rejection sensitivity meant that he experienced feelings of extreme anxiety in social or work settings "due to the belief that no one likes him".

The judgment added that he experiences ADHD paralysis, which means he struggles to initiate, complete, or sustain tasks due to overwhelming feelings of anxiety, stress, or mental fatigue.

"It often seems as though the claimant is not listening when he is spoken to directly, and he will have difficulty concentrating on a conversation (especially long sentences/stories/explanations that require a higher level of focus) and afterwards, not knowing what a conversation was about and needing things to be repeated," it continued.

Judge Moore said: "This tribunal considers that on the face of it, [Lidl] were perfectly entitled to denote use of the PPT truck on the shop floor as gross misconduct. It was obvious that this was a policy [staff] take very seriously and rightly so.

"[Toghill's] ADHD does mean he has communication difficulties… ADHD is a neurodiverse condition that affects people in many different ways. The impact on one person, with the same disability, may not necessarily be the same as the impact on another.

"We find that [Toghill's] ADHD did put him at a substantial disadvantage during the disciplinary procedure, specifically the disciplinary hearing and applied sanction of dismissal but not the investigation or appeal stage."

Toghill was successful in his claims of unfair and wrongful dismissal, and a complaint of failure to make reasonable adjustments was upheld.

His compensation will be decided at a later hearing.

Francesca Wild, senior associate solicitor with Morr & Co, said this was the latest in a string of cases to take a "more stringent, employee-focused approach".

"This case and those like it should serve as a reminder to employers that the symptoms and impact of a disability on an individual can be varied and far reaching," she said.

"Those symptoms or impacts may also not necessarily be obvious to the employer or the people who work for them, especially in cases of 'hidden' disabilities such as neurodiverse conditions.

"The upshot of this trend is that employers will need to think very carefully about the steps they take in connection with internal processes where they involve a disabled employee."

Ross Spiller, a solicitor at Mayo Wynne Baxter, noted that the tribunal highlighted the fact that the dismissal appeal corrected a number of errors the retailer had made.

"However, the decision remained flawed due to the inconsistency of sanctions applied for similar misconduct," he added.

"The tribunal was also critical of the employer's failure to make reasonable adjustments to the disciplinary hearing to accommodate Toghill's ADHD diagnosis.

"Sufficient steps must be taken by the employer to ensure all reasonable adjustments are made for a disciplinary hearing.

"If an employer fails to do so, an employee will be able to argue any decision made following the process is flawed, as they were not able to fully participate. This is particularly poignant if the individual's condition means they have communication difficulties.

"The case demonstrates how the particular symptoms of a condition can vary from person to person and an employer is required to consider how a condition impacts an individual personally."