Neurodiversity in the workplace: an overview

This blog is an overview of neurodiversity in the workplace, highlighting what kind of support could be provided and looking at an employer’s obligations when neurodivergence amounts to a disability.

Neurodivergence as a workplace issue

Neurodivergence is a non-medical umbrella term that describes people with brain functioning and/or behavioural traits that are different from the majority or what society sees as ‘typical’. There is no definitive list, however, it may include ADD (attention deficit disorder), ADHD (attention deficit hyperactivity disorder), autism, dyscalculia, dyslexia, dyspraxia and Tourette syndrome.

With estimates that one in seven people in the UK are neurodivergent, employers should ensure they appropriately support neurodivergent colleagues in the workplace and understand the benefits they can bring. Inclusive recruitment practices could open up a pool of talent that would otherwise remain untapped. A neurodiverse workforce could bring business benefits such as diversity of skills, thinking and approaches to problem-solving as well as a better understanding of the needs of neurodivergent customers and clients.

When could neurodivergence amount to a disability?

Some individuals will be disabled due to neurodivergence, and others will not. A person has a disability under the Equality Act 2010 if:

• They have a physical or mental impairment; and
• The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

An individual may be disabled even without a formal neurodivergence diagnosis.

In Stedman v Haven Leisure Ltd the Employment Appeal Tribunal (EAT) found that an employee who had been diagnosed with autism and ADHD was disabled under the Equality Act 2010. It overturned the tribunal’s decision, which had focussed too heavily on what Mr Stedman could do: “the tribunal must not weigh what a claimant cannot do against what they can do, either with reference to a single activity or generally in relation to all day-to-day activities”.

In the EAT’s view, when considering whether someone is disabled “it is sufficient if the claimant has a mental or physical impairment that has a substantial (more than minor or trivial) adverse effect on just one day-to-day activity”. The medical evidence was that Mr Stedman had social anxiety, struggling to interact and communicate with colleagues and customers, and difficulty using public transport.

Discrimination and harassment

Where a neurodivergent worker is disabled, the following issues could arise:

• Direct disability discrimination – where a job applicant or worker is treated less favourably because of a disability, for example if an employer automatically rejects a job applicant because they are neurodivergent.
• Indirect disability discrimination – where selection criteria, policies, employment rules or practices (that apply to all workers) disadvantage those who share a particular disability, and the employer cannot objectively justify the criteria, policies, rules or practices.
• Discriminatory harassment – ‘unwanted conduct related to disability’ which has the purpose or effect of violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This could include jokes or 'banter' related to neurodivergence. Discriminatory harassment can arise even if the person offended is not themselves disabled.
• The duty to make reasonable adjustments and discrimination arising from disability – see below.

Duty to make reasonable adjustments

There is a duty to make reasonable adjustments where a disabled job applicant or worker is placed at a substantial disadvantage compared with people who are not disabled because of a provision, criterion or practice, a physical feature of the premises or any failure to provide an auxiliary aid.

It is essential not to stereotype individuals based on their particular neurodivergence, as abilities and challenges will vary significantly. ACAS has published practical examples and guidance on adjustments for neurodivergent workers.

In Saunders v Peloton Interactive UK Limited, the employer failed to make reasonable adjustments for an employee with autism, ADHD and depression who struggled to cope with noise, bright lights, busy social environments, customer facing work, unexpected changes, time management and concentration. The employee required scheduled breaks due to sensory overload, and the tribunal found that Peloton should have continued to formally schedule breaks for the employee. Also, public facing work placed the employee at a substantial disadvantage, and it would have been reasonable for Peloton to have trialled a back-office noncustomer facing role with supporting adjustments.

In AECOM Ltd v Mr C Mallon, the employer failed to make reasonable adjustments for an applicant with dyspraxia who struggled to create an online profile and complete an online application form. Mr Mallon emailed AECOM and asked for a telephone application process due to his dyspraxia (but did not explain the aspects of the form which were causing him difficulty). AECOM’s HR manager offered to support the claimant with the application process but did not offer a telephone alternative. Mr Mallon did not respond to the email from HR and was therefore unable to submit his application for the role. The tribunal found that AECOM should have called Mr Mallon to ask for more details of his difficulties and then made reasonable adjustments to the recruitment process.

The duty to make reasonable adjustments arises when an employer knows (actual knowledge) or could reasonably be expected to know (constructive knowledge), that the worker has a disability and is likely to be placed at a substantial disadvantage compared with those who are not disabled. The employer is expected to make reasonable enquiries, something AECOM failed to do after Mr Mallon informed them of his issues with the online process.

Support

In practice, it is likely to be better to focus on putting appropriate support in place, rather than trying to work out if individuals meet the legal definition of disability. What is appropriate will always depend on the circumstances, but support and adjustments for neurodivergent workers are likely to fall under the following headings:

• awareness training
• internal networks
• recruitment (e.g. clear language, practical assessments)
• induction (is there a focus on team activities, or a risk of information overload?)
• physical workspaces (e.g. dedicated quiet areas, lighting adjustments)
• performance (do tasks need to be broken down with clear milestones for example?)
• conduct
• team-working, team building and social events
• disciplinary and grievance meetings (e.g. provide more information in advance, allow employee to be accompanied by a family member)
• communication and documentation (e.g. provide information in different formats)
• managing change.

Workbox by Brodies

For more guidance on the options for support and adjustments at work, we have a dedicated page and policy on Neurodiversity on our award-winning online HR portal, Workbox by Brodies. To arrange a short Workbox demo, please get in touch.

For more information on any of the above please contact a member of Brodies Employment and Immigration team.