Updated: Oct 27, 2021
Attention Deficit Hyperactivity Disorder (“ADHD”) is a cognitive disability, which causes difference in the brain development and brain activity that affects a number of executive functions, causing restlessness, hyperactivity, spontaneity, reckless behaviour, emotional dysregulation and poor time management skills (amongst others).
Unfortunately, it is these very symptoms that create a barrier for employees with ADHD in succeeding in employment, and it should come as no surprise to learn that individuals with ADHD typically earn a lower income, are subjected to more disciplinary processes and are less likely to sustain full-time employment than their peers without ADHD.
In New Zealand, we have fairly comprehensive protections in place to support employees with disabilities: however, they are not widely understood and applied. In this article, I aim to provide an outline of the Human Rights Act 1993 and the Employment Relations Act 2000 to provide a basic understanding of your employment rights.
Human Rights Act 1993
The Human Rights Act 1993 provides specific provisions to protect individuals from discrimination in their employment. Section 22 of the Human Rights Act 1993 states that an employer must not do any of the following, by reason of any of the prohibited grounds of discrimination:
Refuse or omit to employ the applicant on work of that description which is available.
Offer or afford the applicant or employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially same capabilities employed in the same or substantially similar circumstances on work of that description.
Terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment.
Retire an employee or require or cause the employee to resign.
Section 23 of the Human Rights Act 1993 also provides that an employer cannot seek information pre-employment recruitment, which could indicate, or could reasonably be understood as indicating, an intention to commit a breach of section 22. This means that an employer cannot request your full medical history, but can instead ask: Do you have a disability or health condition which may impact your ability to conduct your role?
Section 29 provides exceptions in relation to disability; however, I prefer to read these exceptions as confirming the obligations of the employer. That is, the expectation is that if an employee is only able to perform the duties satisfactorily with the aid of special services or facilities, then that employer must do so if it is reasonable to expect the employer to do so.
I often have individuals with ADHD who are accused of not meeting their performance targets, and it is important that employees thoroughly understand the expectations with section 29: for their employer to provide reasonable aids to assist them in meeting their performance expectations. Each person and each case will be different, and you may want to work with a psychiatrist or specialist to determine what aids you require. However, some examples that I have seen include:
The flexibility to take paid and unpaid breaks at times that accommodate and suit the individual. While the employee is entitled to rest and meal breaks under the Employment Relations Act 2000, the parties may seek to agree to an arrangement which is no less advantageous for the employee: for example, the employee may seek to have an additional two 15 minute breaks, rather than a whole 30 minute break.
Changing the employee’s working arrangements; see my discussions below regarding a Part 6AA request for flexible working conditions.
The ability to reduce and control potential distractions. This can be done by changing or amending the working environment to suit the employee. Personally, I have always listened to music while working; as I can control my music, but I cannot control the sound of my colleagues, of a phone call, outside construction, etc.
Regular one-on-one meetings between the employee and their direct supervisor, to ensure that the employee is focused and remaining on target.
Clear targets, which are communicated in writing, and broken into manageable tasks.
Individuals with ADHD work differently than our peers without ADHD: but that does not mean we work any better or worse. Just different; but with the right aids and supports, we can thrive. It is therefore important that you consider how ADHD impacts you and your employment and talk to your employer about the aids and supports you need to succeed.
Employment Relations Act 2000: Part 6AA Request for Flexible Working
In accordance with part 6AA of the Employment Relations Act 2000, an employee has a statutory right to make a request for a variation of their working arrangements (hours of work, days of work, and place of work). The employer is then required to provide a response within one month, and may only refuse a request if it cannot be accommodated on certain grounds.
Section 69AAC provides the requirements you must provide in making a statutory request. In essence, you must:
Specify the date that the request is being made.
State that you are making a request under Part 6AA of the Employment Relations Act 2000.
Specify the variation you seek, and whether this is intended to be temporary or permanent.
Specify the date that you would like the variation to take effect, and when you propose the variation to end.
Explain what changes the employer may need to make to accommodate your arrangements.
Sign the letter with your full name.
While it is not a requirement, I would additionally recommend that you state that the purpose of this request is to assist you with your disability: therefore, additionally covering you under the Human Rights Act 1993.
Your employer must provide a formal response within one month. If your employer refuses the request, they must state that the refusal is due to one of the grounds specified in section 69AAF of the Employment Relations Act 2000:
Inability to reorganise work among existing staff.
Inability to recruit additional staff.
Detrimental impact on quality.
Detrimental impact on performance.
Insufficiency of work during the periods the employee proposes to work.
Planned structural changes.
Burden of additional costs.
Detrimental effect on ability to meet customer demand.
The employer must also explain the reasons for refusing the request on that ground. It is important to note here that there is no limitation on the frequency of requests, and therefore if the circumstances behind the reason change: you can make a new application.
There are additional reasons for refusal for employees who are bound by a collective agreement: however, for the purpose of this article, I will focus on employees on individual employment agreements.
If you disagree with the employer’s reasons for refusal, or believe you have otherwise been treated unfairly, you may seek assistance from mediation services, run by the Ministry of Business, Innovation and Employment.
Employment Relations Act 2000: Obligations to be “fair and reasonable”
There is an expectation that an employer must be “fair and reasonable” and must consider “all the circumstances” before making a decision which impacts the employee’s employment. This is especially important when an employee is subjected to a formal process, which has the ability to impact the employee’s employment: for example, disciplinary, performance, or medical incapacity.
I want to reassure you that everyone makes mistakes. I know that with ADHD, we tend to have high expectations of ourselves; and when we make a mistake, we tend to exaggerate the effect of that mistake. I often have employees who are ready to accept termination of employment; but it is not that simple.
Your employer must consider “all the circumstances”, and it is important that you disclose that you have ADHD, and explain how your condition contributed to the conduct in question. In terms of disciplinary processes, an employer cannot terminate an employee’s employment before satisfying itself that the trust and confidence in the relationship has been destroyed.
This means you must seek to reassure your employer that you can be trusted. It can feel vulnerable making such a disclosure; however, it can also feel like a weight has been taken off your shoulders. As they say, a problem shared is a problem halved. You will want to explain to your employer exactly why you did what you did, and how you will stop this from occurring next time.
I once represented an employee with ADHD who inadvertently arranged for “F**K THIS SYSTEM” to be printed on a customer’s bill. The employee was incredibly frustrated by the system’s repeated failures, and in this instance, he typed “F**K THIS SYSTEM” as his screen froze, and the system seemingly crashed.
The employee received a preliminary decision to terminate his employment. He was understandably distraught.
During the disciplinary process, we explained that the employee felt an overwhelming sense of pressure to complete the tasks while talking to the client, and that he did not feel that he could leave his seat for a glass of water to destress. We stated that it was an impulsive reaction: but one that could be mitigated both by creating a supportive working environment, and by the continued use of the employer’s internal processes which had successfully prevented the amendment to the customer’s bill. We also highlighted his long and successful employment history with the employer, and we discussed aids to support the employee through stressful situations.
The employee walked away with a Final Written Warning and remained successfully employed for another two years, before resigning on his own accord.
Moral of the story: Own your mistakes, and use these experience as a positive learning opportunity.
Do not become another statistic. I urge that you understand your legal rights, and that you enforce them where needed. It is important that you are heard. Talk to your employer, and if you feel that you need a hand; seek assistance from a friend or a representative.
You can talk to me; my details are at the bottom of this article. I provide free initial advice, and if you require representation I work on an ethical “No Win, No Fee” structure: providing you with quality advice and representation with no upfront costs. Alternatively, you may wish to follow me on Facebook, where I routinely post about employment law.
Legal AF Limited t/a Ashleigh the Advocate
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