A potential £76 million employment tribunal claim involving a senior tech executive, ADHD, a company offsite and a night spent in a sauna room has generated the sort of headlines employment law cases rarely receive.
Despite media claims, Shannon Burns has not been awarded £76 million. That is the amount she is seeking in her schedule of loss, much of it based on claimed future earnings and equity in a highly lucrative technology career. The tribunal has yet to determine what compensation she should receive.
What has already been determined is much more relevant to employers. The Employment Tribunal found that Burns was subjected to discrimination arising from disability and that her employer, Gitpod, failed in its duty to make reasonable adjustments, while her direct sex discrimination claim was dismissed. A separate remedy hearing is still to come.
Behind the enormous compensation claim is a relatively familiar workplace problem: an employee discloses a disability, begins struggling with aspects of their job, and their difficulties are increasingly viewed as questions of performance, conduct and professionalism. For employers, Burns v Gitpod shows how easily disability-related difficulties can become entangled with performance management and dismissal.
What happened in Burns v Gitpod?
Shannon Burns joined software company Gitpod as Vice President of Engineering in January 2023. She was a highly paid and experienced technology executive, earning £220,000 a year with a potential £78,000 annual bonus.
Burns has ADHD and dyslexia. A preliminary tribunal had already determined that the conditions amounted to disabilities under the Equality Act 2010 during the relevant period. The tribunal subsequently found that she had told Gitpod’s Head of People about her ADHD and dyslexia during the recruitment process.
Gitpod was a remote company with what the judgment describes as a heavily written and asynchronous working culture. Employees working across different locations and time zones were expected to communicate extensively through written documents and messages.
Within weeks of starting the role, Burns was struggling. On 8 February 2023, she contacted the Head of People asking about an ADHD coach or an “accessibility accommodation”. She explained that she was deeply overwhelmed by the sheer volume of information she needed to catch up on and was struggling to manage the different information flows.
The significance of that communication would later become central to the case. The tribunal found that by 8 February Gitpod had actual or constructive knowledge that Burns was at a substantial disadvantage because of her ADHD and dyslexia. It said the employer should have investigated her needs, including obtaining an occupational health assessment. Simply allowing Burns to source an ADHD coach herself did not absolve the employer of its responsibilities.
When performance problems may be disability-related
At the same time, Gitpod had concerns about Burns’s performance. Among the issues subsequently considered by the tribunal were whether she was sufficiently able to act as a “self-starter and finisher”, whether she made and met agreements, and whether she could adapt effectively to the company’s written asynchronous culture.
While those sound like ordinary performance-management concerns, they are also precisely what makes the case important. The tribunal found that a number of the matters feeding into the assessment of Burns’s performance arose from her disabilities. Her ADHD affected attention, organisation and completing tasks, while her ADHD and dyslexia made processing the large volume of written communications more difficult.
The tribunal also considered adjustments that could have been made. These included an ADHD and dyslexia coach and assistive software such as a screen reader. It found that an occupational health assessment would probably have identified Burns’s slow reading speed and difficulties navigating the company’s written culture, and that a screen reader was likely to have mitigated that disadvantage.
The tribunal ultimately found that Gitpod’s failure to make reasonable adjustments affected Burns’s ability to succeed in the role and contributed to the decision to dismiss her.
While employers are entitled to have performance standards, including for disabled employees. The risk arises when a business treats apparent underperformance as an isolated capability problem without adequately considering whether disability is contributing to it and whether reasonable adjustments could address the disadvantage.
The work offsite and the “sauna” headlines
The part of the case that has attracted the most attention happened during a company offsite in Austria in April 2023. Burns drank alcohol alongside colleagues during the event. Later in the evening she was unable to get into her hotel room after leaving her key inside. The judgment records that there was no receptionist available and that her roommate did not respond to calls or messages.
This has repeatedly been reduced to headlines about a highly paid executive becoming drunk and “sleeping in a sauna”. The underlying judgment is more precise. It records Burns later telling a manager that she had “passed out on a bed in the sauna room“, although other parts of the judgment itself use the shorthand of sleeping “in the sauna”.
The tribunal also did not find that alcohol consumption itself was caused by ADHD. It found that Burns had significant problems with forgetfulness and organisation associated with ADHD. She had lost her key on two occasions during the offsite, including once when she had not been drinking. On the later occasion, the tribunal found that alcohol was likely to have played a part, alongside the forgetfulness arising from ADHD.
The incident subsequently fed into concerns about Burns’s “executive presence”, professionalism and accountability. This is an important compliance point. Something can involve poor judgment or behaviour that an employer legitimately wants to address while also having a disability-related component. Employers need to investigate that relationship rather than assuming that describing an issue as misconduct, poor performance or lack of professionalism takes it outside disability law.
Why Gitpod’s dismissal decision became discriminatory
Burns was dismissed in June 2023. Gitpod argued that it had a legitimate need to part company with underperforming senior employees. The tribunal accepted that this was potentially a legitimate business aim, particularly for a relatively small start-up that had recently reduced its workforce.
However from a compliance point of view, that did not make the dismissal proportionate.The tribunal found that Gitpod had failed to discharge its duty to make reasonable adjustments after that duty arose in February. It concluded that dismissing Burns in June, without those adjustments having been made, was not a proportionate means of achieving the company’s legitimate aim. Her claim for discrimination arising from disability therefore succeeded.
Disability does not provide immunity from performance management or dismissal. An employer may ultimately be able to dismiss someone who cannot meet the requirements of their role. The process leading to that decision matters enormously.
Employers should do all they reasonably can to support a disabled employee before resorting to formal capability action, including considering reasonable adjustments. Where dismissal is eventually contemplated, employers should be able to demonstrate that appropriate support and adjustments have been considered and that dismissal is a last resort.
The £76 million claim has not been awarded… yet
Burns is pursuing a schedule of loss valued at approximately £76.07 million. That is not an employment tribunal award and there is currently no finding that she is entitled to receive that sum. Her case is that discrimination and dismissal caused the loss of what could otherwise have been an exceptionally lucrative career in technology, including substantial future equity compensation.
Gitpod sought a deposit order in relation to the portion of the claim exceeding £1 million, arguing that it had little reasonable prospect of success. According to reporting of the latest hearing, Employment Judge Rachel Wedderspoon declined to make that order. The judge recognised that the amount claimed was highly unusual, while finding that the tribunal could not conclude at that preliminary stage, without the necessary expert evidence, that Burns’s valuation had little reasonable prospect of success.
That allows Burns to continue pursuing the £76 million claim. It does not mean she has won £76 million or that the tribunal has decided her career would have generated that amount. Whatever amount is eventually awarded, the unusually large schedule of loss should not distract from the discrimination findings that have already been made.
Disclosure should trigger action, not assumptions
Perhaps the clearest lesson from the case concerns what happens after an employee tells an employer about a disability.
Burns had disclosed ADHD and dyslexia during recruitment. Initially, the tribunal found there was no particular reason for Gitpod to believe she was disadvantaged. She had performed strongly during an extensive interview process.
That changed when she subsequently told HR that she was overwhelmed, struggling with information and wanted ADHD coaching. The tribunal was particularly clear that Burns’s seniority did not remove the employer’s responsibility to investigate how her disabilities affected her. A highly paid executive is as capable of requiring reasonable adjustments as anyone else.
Employers should therefore be wary of assuming that a capable employee can simply manage a disability themselves because they have previously performed well, occupy a senior position or have developed coping mechanisms. Employers should talk to the worker, understand the disadvantage they are experiencing and consider what could remove or reduce it. Neurodivergence, including ADHD and dyslexia, can amount to a disability under the Equality Act, depending on its effects.
