By Ashleigh Fechney LLM (Hons), BA
ashleightheadvocate.co.nz
Attention Deficit Hyperactivity Disorder (ADHD) causes a difference in your brain's development and can result in activity that affects several executive functions such as restlessness, hyperactivity, spontaneity, reckless behaviour, emotional dysregulation and poor time management skills (amongst others).
Unfortunately, it's these very symptoms that create a barrier for those of you living with ADHD to succeed in employment. It should come as no surprise to learn that you may typically earn a lower income, are subject to more disciplinary processes and are less likely to sustain full-time employment than your peers without ADHD.
In New Zealand, we have fairly comprehensive protections in place to support employees with disabilities: however, they're 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 you with 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, because 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, and
- retire an employee or require or cause the employee to resign.
Do you have a disability or health condition which may impact your ability to conduct your role?
An employer can ask you this, but they can't request your full medical history. This is because 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.
There are exceptions to disability as section 29 provides; however, I prefer to read these exceptions as confirming the obligations of the employer. That is, the expectation is that if you are only able to perform the duties satisfactorily with the aid of special services or facilities, then your employer must do so if it is reasonable to expect them to do so.
Know what aids or support you need to succeed
I often have individuals with ADHD who are accused of not meeting their performance targets. It's important that if you're an employee that you thoroughly understand the expectations of section 29: for your employer to provide reasonable aids to assist you in meeting their performance expectations. Your situation will be specific to you, and you may want to work with a psychiatrist or specialist to determine what aids you require.
Those of us with ADHD work differently than our peers without ADHD: but that doesn't mean we work any better or worse. Just different. With the right aids and supports, we can thrive. So you should consider how ADHD impacts you at work and talk to your employer about the aids and supports you need to succeed.
Some examples that I have seen include:
- the flexibility to take paid and unpaid breaks at times that accommodate and suit you. While you're entitled to rest and meal breaks under the Employment Relations Act 2000, you and your employer may seek to agree to an arrangement which is no less advantageous for you: for example, you may seek to have an additional two 15-minute breaks, rather than a whole 30-minute break
- the ability to reduce and control potential distractions. This can be done by changing or amending the working environment to suit you. 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 you and your direct supervisor, to ensure that you are focussed and remaining on target
- clear targets, which are communicated in writing, and broken into manageable tasks, and
- asking for flexible working conditions.
Asking for flexible working conditions
As an employee, you have a statutory right to request a variation to your working arrangements (hours of work, days of work, and place of work) under part 6AA of the Employment Relations Act 2000. Your employer is then required to respond within one month, and may only refuse a request if it can't be accommodated on certain grounds.
To make your request 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're 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 your employer may need to make to accommodate your arrangements, and
- sign the letter with your full name.
While it's not a requirement, I would additionally recommend that you state that the purpose of this request is to assist you with your management of ADHD. As a disability you're additionally covered 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 the quality
- detrimental impact on performance
- insufficiency of work during the periods the employee proposes to work
- planned structural changes
- the burden of additional costs, or
- detrimental effect on the ability to meet customer demand.
Your employer must also explain the reasons for refusing the request on that ground. It's 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 this article, I have focussed on employees on individual employment agreements.
If you disagree with your employer’s reasons for refusal or believe you have otherwise been treated unfairly, you may seek mediation assistance from the Ministry of Business, Innovation and Employment.
Employment Relations Act 2000: Obligations to be “fair and reasonable”
There's an expectation that your employer must be “fair and reasonable” and must consider “all the circumstances” before making a decision which impacts your employment. This is especially important if you're subjected to a formal process, which can impact your 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's not that simple.
Your employer must consider “all the circumstances” so it's important that you disclose that you have ADHD, and explain how your condition contributed to the conduct in question. You'll 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.
In terms of disciplinary processes, your employer cannot terminate your employment before satisfying itself that the trust and confidence in your relationship have been destroyed. This means you must seek to reassure your employer that you can be trusted. You'll 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*** 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*** 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 didn't feel that he could leave his seat for a glass of water due to distress. 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.
Conclusion
Don't become another statistic. I urge that you understand your legal rights and that you enforce them where needed. You must be heard. Talk to your employer, and if you feel that you need a hand, seek assistance from a friend or a representative.
You can also talk to me. My details are below. 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: @Ashleigh.the.advocate.
Ashleigh Fechney LLM(Hons), BA
Employment Law Advocate
027 555 999 5
Ashleigh.the.advocate@gmail.com
www.ashleightheadvocate.co.nz
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