The term ‘neurodiversity’ describes the various ways the brain can function and interpret information. Neurodiversity recognises that individuals naturally think about and process information and/or situations differently and acknowledges that each person has different interests and inherent strengths in specific areas.
Neurodiversity is a growing workplace issue, with approximately one in seven people being neurodivergent, and diagnoses in adults continue to increase. As a result, neurodiversity in the workplace is increasingly recognised under employment law, particularly the Equality Act 2010 (“EqA”).
This month, we focus on the legal landscape surrounding neurodiversity, highlighting the employment law aspects that employers need to grasp to remain compliant.
Types of Neurodivergence
Some of the well-known types of neurodivergence are:
- ADHD
- Autism
- Dyslexia
- Dyspraxia
- Tourette’s syndrome
Understanding Neurodiversity in The Workplace
Widely recognised characteristics of neurodiversity consist of:
- Challenges in communication and social interactions
- Problems with processing sensory information
- Struggles with focus and concentration
- An intense interest in a specific topic or activity
- Trouble organising thoughts
- Difficulty adhering to instructions
- Challenges in crowded areas, loud or sudden noises, social situations, bright lights or hot desking.
Does Being Neurodivergent Imply That Someone is Disabled?
Being neurodivergent does not automatically classify someone as disabled; however, under the EqA, certain conditions may qualify as a disability under the Act, based on how substantially they hinder normal daily activities.
There is no definitive rule stating that neurodivergence automatically equates to a disability in the workplace, and each situation will be evaluated on its own merits. Nevertheless, neurodiversity is becoming a more significant topic in employment law, as highlighted by a recent survey by City & Guilds, which found that over one in ten UK businesses surveyed faced an employment tribunal due to disputes involving neurodivergent employees.
Neurodiverse employees are typically regarded as having a disability if they satisfy the following conditions set out in Section 6 of the EqA:
- They have a ‘physical or mental impairment’ and
An employee doesn’t require a formal diagnosis to be considered disabled under the EqA, and it is quite common for them to be without a diagnosis due to factors like worries about stigma or long NHS waiting times.
The tribunal should concentrate on how the condition affects the individual rather than its specific medical classification. In this context, ‘substantial’ means ‘more than minor or trivial,’ which is a relatively low threshold. The law also disregards any medications or coping mechanisms that might mask the actual impact of the impairment.
Employers’ Legal Obligations
If an employee with neurodivergence fits the definition mentioned above, it becomes illegal for you, as an employer, to treat them unfavourably due to their disability. Likewise, you cannot subject them to harassment or victimisation on account of their condition. Additionally, you are legally required to make reasonable adjustments to the workplace or in working arrangements to alleviate the challenges faced by neurodivergent employees.
You won’t be held liable for discrimination related to disability or for not making reasonable adjustments unless you were aware, or should have been aware, of the employee’s disability. Conditions like autism and ADHD are often referred to as ‘invisible’ disabilities, which means that they might be hidden or only become apparent in certain situations, and the employee may opt not to disclose them to you. However, you can be considered knowledgeable about a disability if there were indications or warning signs that were overlooked.
Even if your employee does not meet the legal criteria for being disabled, you may still want to consider what measures you can take to assist them as part of your commitment to fostering a neuro-inclusive workplace.
Inclusive Workplace Practices
It is beneficial to evaluate your hiring methods to ensure they are neuro-inclusive. Here are some suggestions:
- Providing various options for submitting job applications
- Using straightforward language instead of recruitment jargon in job postings
- Training interviewers to refrain from judging candidates based on social cues or body language.
- Whenever possible, giving applicants the chance to see questions before the interview
- Conducting interviews or assessments in quiet environments free from distractions
- Exploring alternatives to standard interviews, like short paid work trials or hands-on assessments
Moreover, employers should be mindful of considering neurodivergence when addressing matters related to performance, behaviour, or appraisals. For instance, a neurodivergent employee may interpret feedback differently during performance discussions; they may not catch subtle hints or might interpret feedback in a very literal sense. Therefore, it is advisable to talk with the employee about their preferred methods for receiving feedback.
Making Reasonable Adjustments
Employers are legally obliged to eliminate obstacles for disabled staff by making ‘reasonable adjustments’ when there is a chance that their disability could hinder their job performance. The definition of ‘reasonable’ can differ depending on the circumstances; however, employers are not expected to change the essential nature of the job. For instance, if an individual in a call centre requests a position that does not involve taking calls, this may not be deemed reasonable if it contradicts the primary responsibilities of the role.
If you have an employee with neurodivergent traits, it is advisable to follow their lead regarding the support they require when discussing reasonable adjustments. This is important because what works for one neurodivergent individual may not be beneficial for another with the same condition.
Examples of reasonable adjustments that could assist a neurodivergent employee include:
- Flexible working hours/locations
- Coaching
- Providing written instructions for tasks
- Earlier deadlines for projects
- A quiet workspace or noise-cancelling headphones
- Additional or reduced lighting
- Permitting frequent short breaks throughout the day.
Next Steps
Neurodiversity is becoming an increasingly important issue in the workplace, as more organisations encounter tribunal claims due to inadequate support for neurodivergent staff. Not accommodating neurodivergent employees can lead to legal challenges, workplace disputes, and higher absenteeism.
By understanding legal requirements and adopting supporting practices, employers can foster a more inclusive and welcoming environment for neurodivergent employees.
Our experienced employment law team can provide expert legal support and guidance tailored to your business requirements. We can review any workplace policies, provide advice on reasonable adjustments and conduct training workshops to ensure your workplace is compliant and fully supportive of neurodivergent individuals. For more information, contact us on 0330 173 6983 or via email.
