Neurodiversity is an increasingly prominent issue in employment law, with a recent survey by City & Guilds revealing that more than 1 in 10 of the UK businesses surveyed were involved in an employment tribunal due to conflicts involving neurodivergent employees.
Neurodiversity is vital for the future of work. By committing to making your organisation neuroinclusive with equality of opportunity and outcomes for all types of thinkers, you can ensure your organisation doesn’t get left behind. Sally Gwilliam from our Employment Law team guide you through the take positive steps to put neurodiversity firmly on your organisation’s agenda.
The report also found that nearly one in three neurodiverse employees are dissatisfied with the support they receive from their employer, with more than half (51%) having taken time off work because of their neurodivergence. It warns that there is a risk that this lack of support for neurodiverse individuals in the workplace could contribute to burnout, workplace conflicts, and mental health needs not being considered in policies.
ACAS has recently launched a campaign to improve understanding and support for neurodivergent workers and guidance on neurodiversity at work. A new Department for Work and Pensions expert panel on neurodiversity and employment has also been formed. ACAS advises that employers should prepare for, among other things, better accountability in ensuring that recruitment and workplace policies support neurodivergent people, more practical guidance, and a stronger evidence base to underpin the benefits of neuroinclusive practices.
All of this means it is crucial that employers understand how to create a neuro-inclusive workplace and their legal obligations.
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What is Neurodiversity?
Neurodiversity describes the natural differences in how people's brains behave and process information. Neurodiversity refers to the fact that we all think, learn and act differently, and have different strengths and things we find challenging.
Some well-known types of neurodivergence are ADHD (attention deficit hyperactivity disorder), autism, dyslexia and dyspraxia.
Understanding legal obligations: The Equality Act 2010
Although neurodivergent conditions are not necessarily disabilities for employment law purposes, they often will be. Some neurodivergent people don’t see themselves as disabled, but being neurodivergent will often amount to a disability, which is a protected characteristic under the Equality Act. An employee doesn’t need a formal diagnosis to be considered disabled under the Act and it’s common for them not to have a diagnosis for reasons such as concerns about stigma or NHS waiting times.
The law gives rights and protections to disabled employees. For example:
- The right not to be treated less favourably because of their disability
- The right to reasonable adjustments
- The right not to be subjected to harassment
Even if your employee doesn't meet the legal definition of being disabled, you may still want to consider what measures you can put in place to support them as part of your commitment to creating a neuro-inclusive working environment.
Common workplace issues leading to tribunal claims
Failure to provide reasonable adjustments
If you have an employee with neurodivergent characteristics, it’s best to be led by them on what support they need when discussing reasonable adjustments. An adjustment that suits one neurodivergent person might not help someone else with the same condition.
Examples of support could include:
- A quiet space for the individual to work in and/or noise-cancelling headphones
- Equipment or tools such as a screen reader or dictation software
- Additional or reduced lighting
- Allowing frequent short breaks throughout the working day
It might also be helpful to take advice from occupational health or a GP when deciding what adjustments are suitable.
A failure to make reasonable adjustments is a type of disability discrimination. If the employee decided to make a claim for disability discrimination, an Employment Tribunal would ultimately decide whether the adjustment was reasonable taking into account factors such as:
- How effective the change will be in avoiding the disadvantage the employee would otherwise experience
- Its practicality
- The cost
- Your organisation’s resources and size
- The availability of financial support
Discriminatory recruitment, management, and disciplinary practices
It’s a good idea to review your recruitment processes to ensure they are neuro-inclusive. This might include:
- Offering different ways to complete a job application
- Replacing recruitment jargon with clear language that's specific to the role
- Train interviewers in how to avoid making assumptions based upon an applicant's body
- Language or social behaviour
- Where possible, allow applicants to see the questions before the interview
- Hold interviews or assessments in suitable, quiet spaces away from other distractions
- Consider alternatives to interviews, such as short paid work trials or practical assessments
It's also important to take neurodivergence into account when dealing with issues related to performance, conduct or appraisals. Making changes to performance goals or work duties could be a reasonable adjustment if a disabled employee's neurodivergence is affecting their performance in some way.
Be mindful also that a neurodivergent employee may receive feedback differently when conducting performance discussions.
For example, some neurodivergent individuals may:
- Take feedback very literally.
- Not understand hints or understatement.
- Experience rejection sensitivity and have a disproportionate reaction to perceived criticism of their work or performance.
- Find concise, direct feedback easier to process.
It’s a good idea to explore with the employee their preferred ways of communicating feedback.
Proactive steps to ensure legal compliance and inclusion
- Implementing clear workplace policies on neurodiversity
There is growing awareness of neurodiversity and having a neurodiversity policy indicates a commitment by your organisation to take proactive steps to establish and maintain a neuroinclusive workplace. - Providing reasonable adjustments and flexible working arrangements
Making reasonable adjustments and considering flexible working arrangements is not only a legal obligation but also an important step towards creating a more inclusive workplace.
Have open and effective conversations with employees and invite requests for adjustments from everyone to ‘normalise’ the conversation and ensure those who may not know they are neurodivergent feel able to request support, adjustments and flexibility. - Training managers and HR teams on neurodiversity awareness
The importance of training should not be underestimated. A recent ACAS survey revealed that 59% of line managers do not know how to make a reasonable adjustment to support employees and 39% find it difficult to have a conversation about adjustments with a neurodivergent employee.
ACAS emphasises the importance of training and supporting managers so they know how to treat and support their neurodivergent staff and recommends that employers should include neurodiversity in their mandatory training.
Our employment law experts can provide training for your managers, HR team or organisation as a whole so please contact us to discuss how we can help.
The business benefits of an inclusive approach
A commitment to valuing neurodiversity in the workplace and creating an open, supportive and inclusive working environment will help your organisation attract staff with a wider range of skills and experiences as well as helping reduce levels of sickness absence, improve employee wellbeing and avoid discrimination claims.
Summary
Neurodiversity is a growing workplace issue, with more businesses facing tribunal claims due to inadequate support for neurodivergent employees. Failure to accommodate neurodivergent employees can lead to legal risks, workplace conflicts, and higher absenteeism.
Our employment law experts can help with policy development, training, and practical guidance. Contact us today to discuss how we can support your organisation.
