The tribunal decision in Burns v Gitpod (2025) highlights a growing area of risk for employers: treating behaviour as misconduct without first considering whether it may be linked to a disability.

In this case, an employee was dismissed following an incident at a work event, where she was found asleep in a sauna after losing her room key. The employer viewed this as inappropriate conduct. However, the tribunal found that her forgetfulness — associated with ADHD — had played a direct role in the incident. Crucially, this had not been properly explored before the decision to dismiss was made.

The case reinforces an important principle under the Equality Act 2010. Where a condition such as ADHD has a substantial and long-term impact, it may meet the legal definition of a disability. Employers are then required to consider reasonable adjustments (sections 20–21) and must avoid discrimination arising from disability (section 15). Failing to investigate whether behaviour may be linked to a disability can render a dismissal unlawful.

What stands out in Burns v Gitpod is the tribunal’s focus on process. Employers are expected to look beyond the immediate facts of an incident and consider whether there may be an underlying medical or neurodivergent explanation. This may involve seeking Occupational Health advice, reviewing any support already in place, and assessing whether the issue should be managed as a capability matter rather than misconduct.

For organisations, the message is clear: disciplinary decisions need to be both medically and legally informed. Without this, the risk of tribunal claims increases, and decisions become far harder to defend. As cases involving neurodiversity continue to rise, employers who do not adapt their approach are likely to find themselves increasingly exposed.