A Lidl deputy store manager has won his case for unfair dismissal after a tribunal found he was treated unfavourably because of his disability.
Ryan Toghill, who worked at the supermarket’s Newport branch, was diagnosed with ADHD in 2022. As part of his condition, he experiences rejection sensitivity, a heightened emotional and psychological reaction to perceived, or actual, rejection, criticism, or disapproval.
Staff at the warehouse used powered pallet trucks, which weigh around a tonne and are subject to strict safety rules. Workers were expected to complete refresher training every six months, though Toghill told the tribunal it was common practice for employees to operate them without updated training.
In July 2023, Toghill was diagnosed with a hernia and moved to Lidl’s Ystrad Mynach store. Despite the risks posed by his condition, he continued to use the trucks, prompting an investigation. Shortly afterwards, he was signed off for four weeks with mental wellbeing issues, such as stress and anxiety, and was called to a disciplinary hearing in August.
He asked for his partner to attend as a disability advocate, but she was recovering from surgery and unable to do so. When he requested an adjournment, he was told the meeting could not be postponed again. Toghill later said the hearing was conducted in a hostile manner, despite him having previously explained in a flexible-working appeal that formal meetings were difficult for him to manage because of his ADHD.
He admitted using the trucks on several occasions, knowing he should not have. After a brief adjournment of nine minutes, he was summarily dismissed. In the dismissal letter, Lidl said he had withheld information, shown a lack of remorse, and breached trust, meaning a final warning was not appropriate.
Toghill appealed, and Lidl offered to redeploy him as a shift manager with a final warning, but he declined. Employment judge Moore found that Lidl had failed to properly consider the impact of his ADHD, mistakenly interpreting his behaviour as a lack of remorse.
The tribunal heard that Toghill’s ADHD and rejection sensitivity caused extreme anxiety in workplace and social situations “due to the belief that no one likes him”. He also experiences ADHD paralysis, leaving him unable to initiate or sustain tasks because of overwhelming stress and mental fatigue. The judgment noted: “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 or explanations that require a higher level of focus, and afterwards, not knowing what a conversation was about and needing things to be repeated.”
Judge Moore added: “This tribunal considers that on the face of it, [Lidl was] 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.”
The tribunal upheld claims of unfair and wrongful dismissal, as well as failure to make reasonable adjustments. Compensation will be determined at a later hearing.
Francesca Wild, senior associate solicitor at Morr and Co, said the case reflected 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 added. ”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, solicitor at Mayo Wynne Baxter, noted that while Lidl’s appeal process corrected some errors, “the decision remained flawed due to the inconsistency of sanctions applied for similar misconduct”.
“The tribunal was also critical of the employer’s failure to make reasonable adjustments to the disciplinary hearing to accommodate Toghill’s ADHD diagnosis,” he added. ”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.”
This article is based on a piece written for Personnel Today
