Should you adjust your disciplinary procedure for autistic employees?

Wetherspoons enforced a zero-tolerance stance on breaches of its employee discount policy, but the question of whether it should have made adjustments for an autistic employee was the issue at the heart of Mr Halstead v J D Wetherspoons PLC. 

Facts 

Mr Halstead began working as a kitchen associate for Wetherspoons in 2019. In summer 2023, he visited a Wetherspoons pub with his family. Using the Wetherspoons app, he placed an order for his table of seven and applied his employee discount, saving £19.17. The app required him to confirm acceptance of the employee discount and privacy policies. 

A few days later, shortly before finishing his shift, Mr Halstead was unexpectedly called to an investigation meeting with a shift manager he had never met to discuss a potential breach of the employee discount policy. The policy limits the discount to a group of four, including the employee. Mr Halstead admitted using it for seven people but said he was unaware of the limit. He also explained that his mother had installed the MyJDW app on her phone to check his rota, which he was told breached the security policy. Mr Halstead said he was unaware of this and immediately arranged for his mother to remove the app. He was suspended on full pay. 

After the meeting, Mr Halstead told the shift manager that he was autistic. A neurodiversity plan was completed, confirming that he needed his mother to attend formal meetings with him. 

A second investigation meeting was held with Mr Halstead's mother present. She explained that she helps her son plan transport to and from work and that, due to his autism, he only reads documents when explicitly told to do so and needs policies explaining to him. 

Mr Halstead was invited to a disciplinary hearing. Wetherspoons alleged that he was dishonest, had abused the discount policy, and failed to comply with data protection and/or the confidentiality policy.  The invitation letter allowed him to be accompanied by a colleague or trade union representative, but not his mother. On the same day, Mr Halstead emailed Wetherspoons to explain that the process was negatively impacting his health and confirmed he was on sick leave. He also asked for an occupational health assessment. 

Wetherspoons arranged a long-term absence meeting, but Mr Halstead's mother asked them to wait for the occupational health report. The report confirmed he was unfit for work, the situation had caused intense distress, and he needed one-to-one explanations of policies, advance notice of meetings, his mother's support for technical tasks and planning, and it recommended her attendance at all formal meetings. 

Mr Halstead's mother raised a grievance on his behalf. He was invited to attend a grievance hearing with only two days' notice, at an unfamiliar venue, with individuals he didn't know, and his mother was not invited to accompany him. She explained he could not attend under those conditions and requested proposals for how the meeting could be conducted without causing him significant anxiety. Wetherspoons rearranged the hearing, invited his mother to attend, and asked for details of any adjustments required. 

Mr Halstead's mother replied to say that a return to work was not possible because the company had failed to make reasonable adjustments, causing severe anxiety. Mr Halstead was invited to attend a formal ‘some other substantial' (SOSR) hearing to discuss the breakdown in relations. To facilitate his participation, Wetherspoons offered several adjustments: 

• The option to hold the meeting via Zoom
• Giving him the questions in advance
• Allowing him to submit written representations instead of attending
• Giving him flexibility on time and location
• Permission for his mother to attend; and
• Inviting him to suggest any other reasonable adjustments he needed to attend the meeting.

Mr Halstead provided written submissions, after which Wetherspoons withdrew from the SOSR process, and changed tack to hold an informal meeting, which helped restore relations.  

A long-term sickness meeting was held via Zoom, and Mr Halstead returned to work on a phased return basis with the following adjustments: 

• Avoiding busy Easter shifts
• Colleague support for e-learning
• Shifts arranged so his mother could provide transport or coordinated finish times for bus travel
• A wellbeing meeting and neurodiversity checklist review
• With his consent, pub managers informed of adjustments

Employment tribunal 

Mr Halstead brought claims for failure to make reasonable adjustments and disability-related harassment. There was no dispute that Mr Halstead was disabled under the Equality Act 2010. Although the shift manager was unaware of his condition until after the first investigation meeting, Wetherspoons had constructive knowledge of his disability from 2019 when a disability checklist was completed.

Failure to make reasonable adjustments

The tribunal found that Wetherspoons placed Mr Halstead at a substantial disadvantage in several ways:

1. The first investigation meeting was held without notice, agenda, or his mother's support, and conducted by a manager he didn't know.
2. It took a zero-tolerance approach and followed its standard procedure of immediate suspension causing intense stress and anxiety. Given there was no evidence of dishonesty (he admitted the breach because he was unaware of the rule) and posed no risk, the tribunal questioned why suspension and disciplinary action continued after it was informed of the impact of his autism.
3. It would only consider allowing an employee to be accompanied to an investigation meeting if the employee asked. While most colleagues could make such a request easily, Mr Halstead found this difficult due to his autism.
4. The standard disciplinary process was followed, template letters were used with no mention in the invite that he could be accompanied by his mother, and no reasonable adjustments were offered. The tribunal said this case did not need to progress to the disciplinary stage, as it might have done for someone without autism, as it could have been resolved at the earliest stages.
5. Standard procedures were followed for the grievance hearing and long-term sickness meeting, which the tribunal said should not have been used in these circumstances. Instead, it should have offered reasonable adjustments. 

The tribunal concluded that Wetherspoons should have made the following reasonable adjustments to avoid this disadvantage: 

• Provide accessible forms in advance
• Explain key policies and documents on a one-to-one basis
• Give prior notice of meetings with clear explanations of their purpose
• Contact his mother ahead of any formal meeting
• Allow his mother to accompany him at all formal meetings
• Ensure HR records transfer with employees so disability information is available to relevant managers
• Seek informal resolution where possible; and
• Regularly check in on his wellbeing and offer support

The tribunal found that Wetherspoons had failed to take these steps up to the point of issuing the SOSR invitation letter, so the claim for failure to make reasonable adjustments succeeded. However, it praised both parties for restoring the relationship which started once adjustments were offered for the SOSR meeting, which ultimately facilitated Mr Halstead's return to work. 

Disability-related harassment

The tribunal found that Wetherspoons responded disproportionately to the alleged breach of the employee discount policy, particularly in the process it followed. The company applied a zero-tolerance approach, treating breaches as gross misconduct and suspending employees immediately. Applying this rigid approach to an autistic employee - who was unaware of the rule and acted without dishonesty - was not proportionate. 

The tribunal noted that zero-tolerance policies can be problematic because they fail to accommodate the diverse needs of individuals, including those with disabilities. The tribunal also criticised Wetherspoons for using standardised procedures for long-term absence and grievance meetings, which ignored Mr Halstead's specific requirements. This amounted to unwanted conduct related to his disability. 

However, the tribunal held that the conduct did not meet the next element of the legal test for harassment. It neither had the purpose nor the effect of violating Mr Halstead's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Although he genuinely perceived it was intimidating, this was not objectively reasonable. Employers have a legitimate right to investigate potential policy breaches and Wetherspoons addressed it in a standardised manner. Such processes - often involving investigations and disciplinary hearings - are inherently challenging and stressful for all parties. However, this does not meet the legal threshold of ‘intimidating’; otherwise, employers would be unable to conduct these processes at all. The harassment claim therefore failed. 

Remedy

For the failure to make reasonable adjustments claim, Mr Halstead was awarded £25,412. This comprised £3,520 for financial loss, £18,500 for injury to feelings (middle Vento band), and £3,392 in interest. 

Key observations

While following standard procedures did not amount to harassment in this case, adjustments should have been made. Rigid, standardised processes and taking a zero-tolerance approach can disadvantage disabled employees, so proactively consider if reasonable adjustments are needed - don't wait for the employee to request them. 

Ensure documentation such as invite letters and other communications are adapted to the individual circumstances. While many organisations use template letters which can be useful, failing to adapt them to individual circumstances risks errors and undermines fairness.

Remember that an organisation can be deemed to have constructive knowledge of a disability even if an individual manager lacks actual knowledge. Make sure you have robust mechanisms in place so that you keep accurate records and that information about disabilities and agreed adjustments are shared when managers change or employees move departments. 

Finally, embed these principles into everyday practice by training managers not only in your standard procedures but also to recognise potential disabilities and proactively apply reasonable adjustments where appropriate. 

Our newsletters

We publish monthly employment and education newsletters. If you'd like to be added to the mailing list, please let me know.