Agreed Is Not Done: What Six Tribunal Cases Teach FE Leaders About Reasonable Adjustments

A member of your team discloses a neurodivergent condition. You do the right thing. You agree to an adjustment. You understandably feel that the difficult conversation is over and the risk has been managed.

Look across a spread of employment tribunal judgments involving neurodivergent staff and a less comfortable pattern emerges. Tribunals punish what happens after an adjustment is agreed, and around the adjustment conversation itself, just as often as they punish an employer who said no. Delay, drift and disengagement carry the same legal weight as outright refusal.

For FE leaders managing casualised contracts, frequent restructures, and thin-line management capacity, that reframing matters. Most managers already know not to refuse an adjustment outright. Fewer realise that agreeing to one and then letting it drift is not the safer option it feels like.

A four-stage duty, not a single decision

It helps to think of the legal duty to make reasonable adjustments as a cycle with four stages: Ask, Agree, Act and Revisit. A genuine, well-run process requires an employer to engage honestly with the request, reach a workable agreement, deliver it, and revisit it as circumstances change. Employment tribunal cases involving neurodivergent claimants show employers falling at every stage, not just the first.

Ask: What a granted adjustment can mean later

In Paterson v Commissioner of Police of the Metropolis (2007), a police chief inspector with dyslexia had already been given 25% extra time in a promotion assessment. When he later brought a discrimination claim, the employer argued he was not disabled at all. The Employment Appeal Tribunal disagreed: if the force had accepted that he needed 25% extra time, that in itself would have shown that his dyslexia had a substantial effect on his day-to-day activities. The adjustment already granted became the evidence that undid the employer’s own later defence, a reminder that engaging honestly at the Ask stage matters more than most employers assume.

Government Legal Service v Brookes (2017) sits at the same stage. A candidate with Asperger’s syndrome asked to answer a multiple-choice test in short written narrative form instead. The employer refused, arguing the format was inseparable from the skill being tested. Both the tribunal and, on appeal, the EAT disagreed. A process can look neutral and objective while still disadvantaging a neurodivergent candidate in a way that is not, in fact, necessary to the role.

Act: The gap between agreeing and delivering

This is where the pattern sharpens. In Kumulchew v Starbucks (2016), a supervisor with dyslexia had made her employer aware of her condition well before she was accused of falsifying temperature and water-check records that her dyslexia made genuinely difficult to complete accurately. The tribunal found a failure to make reasonable adjustments and a lack of understanding of the issue. Disclosure had been met with disciplinary action rather than support.

Sherbourne v N Power Ltd (2019) shows what happens when adjustments are agreed but not delivered. Occupational health recommended four specific adjustments for an autistic employee in April 2018; management did not implement them, citing a lack of training. A revised list was agreed upon in August 2018. His fixed-term contract was terminated the following month, with neither set ever put in place. The tribunal found both indirect discrimination and a failure to make reasonable adjustments.

Procter v Haxby Group Practice (2018) makes the same point outside a neurodivergent context, and is worth including precisely because it shows the principle is not specific to neurodivergence. An employee with carpal tunnel syndrome agreed to voice-recognition software as a reasonable adjustment. Occupational health recommended it in May 2015. It did not work properly until May 2017, delayed by the wrong software version, a stalled funding process and NHS IT security restrictions. The tribunal found the employer had breached its duty simply by failing to deliver an adjustment it had already agreed to, in a timely fashion. An agreement made in good faith and then left to drift through nobody’s clear ownership carried the same legal weight as a refusal.

Revisit: The duty does not end once a plan is written down.

Duncan v Fujitsu Services Ltd (2023) extends this from a single adjustment to an ongoing process. An employee with Autistic Spectrum Disorder and ADHD succeeded on several separate findings: the employer had insisted on mainly oral communication when written instructions were needed, required phone contact during sickness absence when that was not workable for him, failed to give adequate written information ahead of meetings, and disclosed details of his sickness absence to his mother without consent, which the tribunal found amounted to harassment related to his disability. Each was a different point in his employment where the employer failed to revisit whether its usual way of doing things still worked for him. Mr Duncan separately lost his claim that his eventual dismissal, over inappropriate messages, was itself discriminatory, and that finding was upheld on appeal in 2025; the adjustments and disclosure findings stand on their own.

Where the limits are

None of this means every request must be granted, and it would misrepresent the case law to suggest employers only lose. In Rackham v Judicial Appointments Commission (2023), a candidate for judicial appointment with autism and Asperger’s syndrome asked for simplified, non-multiple-choice test questions, advance sight of scenarios and dedicated support staff. The tribunal found the Commission’s existing process, including the adjustments it had already offered, was a proportionate way of maintaining a fair, merit-based selection process, and that the further adjustments requested would have undermined what the test was designed to assess. Genuine, well-reasoned engagement with a request, including a justified partial refusal, is not the drift and disengagement seen in the other cases.

Why does this land differently in FE

Two comparisons are worth drawing out. First, across sectors: this pattern shows up in policing, central government, the NHS, private retail, and judicial recruitment, just as it would in a general FE college, an independent training provider, or an apprenticeship organisation. The duty does not vary by how well-resourced the employer is, even though the capacity to meet it clearly does.

Second, within FE itself, the exposure is uneven. A general FE college is more likely to have HR support that can be adjusted once agreed. An independent training provider or apprenticeship organisation, operating under casualised contracts and with a line manager carrying most of the responsibility, is more likely to see an agreed adjustment quietly stall because nobody is clearly accountable for delivering it. That is precisely the Act-stage failure that cost the employer in Sherbourne and in Procter.

What this means in practice

For individual managers, the shift is small but significant. When you agree on an adjustment, name who is responsible for delivering it and by when, and put a date in the diary to check it has actually happened. Treat that check-in as part of the adjustment, not an optional extra.

For organisations, the blind spot is usually ownership rather than intention. Frequent restructures and casualised contracts make it easy for an agreed adjustment to lose its owner when a manager changes or a contract ends. A simple tracking mechanism that survives staff turnover, revisited whenever a role, team or line manager changes, closes most of the gap.

The Equality and Human Rights Commission’s statutory guidance is clear that this duty is not triggered once and then discharged: it continues for as long as the disadvantage does. ACAS’s neurodiversity guidance makes a related point: managers frequently misread neurodivergent behaviour as a conduct issue precisely when an agreed adjustment has quietly stopped working. And the volume is not static. Analysis of HM Courts and Tribunals Service data published by Irwin Mitchell in February 2026 found tribunal cases involving neurodivergent conditions rose by around 95% between 2020 and 2025, with autism and ADHD the two most common conditions cited. This is not a niche risk.

A sustained practice, not a one-off fix

None of the six cases above describes a dramatic villain. They describe ordinary workplace drift: a training gap never closed, a software rollout stuck in IT approvals, a manager defaulting to the way meetings had always been run. That is precisely why the pattern matters for FE. A single policy or a single training session will not solve it. It requires treating the adjustment conversation as something to revisit deliberately, at every stage of someone’s employment, rather than agreeing to it once and considering it closed. Getting that right is unglamorous, ongoing work. On the evidence of these six judgments, it is also the actual difference between a workplace that manages risk well and one that does not.

By Nathan Whitbread, the Neurodivergent Coach