Neurodiversity and the Law: Creating a Supportive Work Environment

We all think differently. The world (and the workplace) would be rather dull and stagnant if we did not. As such, “neurodiversity”, the natural variation in human brain functioning, is something to be celebrated and encouraged. Like all aspects of diversity, a neurodiverse workforce can provide real advantages to any organisation. Neurodiverse individuals, whose brains work or process information in a way that is non-typical, can offer unique benefits to the workplace. For example, employees with ADHD can often hyper-focus on certain tasks and dyslexic individuals are typically excellent visual problem solvers.  

However, despite the benefits of neurodiversity, the world of work can present barriers to neurodivergent individuals. We know, for example, from the recent Buckland Autism Employment Review that only around 3 in 10 autistic people of working age are currently in employment, compared with around 5 in 10 disabled people and 8 in 10 non-disabled people.

Failure to foster a workplace culture that is inclusive and supportive for a neurodiverse range of employees could not only lead to an employer missing out on strong candidates and facing increased staff turnover, but could also lead to potential discrimination claims.  In some (but not all) cases, neurodiverse individuals will have a “disability” for the purposes of the Equality Act 2010 (the Act). That is, they have “a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. 

Whilst many neurodivergent people would not consider their neurotype to be an impairment, that is the test laid down by the Act. To meet that test, the employee’s condition would need to have an effect on their day-to-day activities:  difficulties with social interaction, communication, planning and emotional regulation for example.  There is no requirement for the employee to have a formal diagnosis for something to amount to a disability under the Act;  when deciding on disability, employment tribunals concentrate on the condition's effects rather than a precise medical diagnosis. 

It is also important for employers to understand that the Act requires an assessment of the impact of the condition without considering any medical treatment. Even if a person's daily medication mitigates their condition's effects completely, they may still have a disability for the purposes of the Act and any assessment must consider the impact of the condition without that medication. 

Disabled individuals have the right not to be discriminated against because of their disability or anything arising from it. Without taking proactive measures to avoid potential discrimination, employers will have little prospect of credibly asserting the statutory defence of having taken all reasonably practicable steps to have prevented a discriminatory act or omission. Employers are also under a legal duty to make reasonable adjustments to prevent staff and applicants from suffering a disadvantage due to their disability.

An employer cannot be liable for discrimination if it does not know or could not be reasonably expected to know that a person has a disability and, of course, it isn’t always necessary for an employee to inform their employer of a disability.  However, an employer can be deemed to have knowledge of a disability if there were clues or warning signs which weren’t followed up on.  This can be difficult, particularly because many neurodiversities are considered “invisible disabilities”. While employers are certainly not expected to diagnose conditions in their workforce, if there are signs suggesting that an employee may have a disability, employers should meet with the employee to discuss any barriers they may be facing to ensure they are supporting the employee appropriately. Organisations should try to take a person centred approach and consider what adjustments are reasonable and appropriate for the individual and the business.

Where things go wrong, claimants are entitled to uncapped compensation, including for injury to feelings. Organisations should therefore be mindful of neurodiversity in all aspects of employment, from hiring to firing and everything in between. Happily, more detailed guidance than ever before is readily available to help employers create a neuro-inclusive workplace. For example, the CIPD has recently published a comprehensive guide on neuroinclusion at work.

Here are just a few practical examples:

Recruitment

A neuro-inclusive hiring process can help to attract neurodiverse talent and to ensure that all candidates are able to put their best foot forward.

Employers should regularly review job descriptions to ensure they are not requiring competencies that are no longer necessary for the role and so that skills are properly labelled as “nice to have” or “must have”. A dyslexic applicant, who is otherwise perfectly suited for a vacancy, may not apply for a role that requires “excellent written communication”.

It is important to be aware that a traditional interview may be difficult for some neurodiverse individuals, such as autistic applicants, who may struggle with eye contact or fast moving conversations. During recruitment, employers should consider whether an interview is the best and only way to properly assess whether an applicant will succeed in the role, or whether other avenues are available.

Facilities and Environment

Physical environment can play an important role in neuro-inclusivity. Neurodivergent individuals can be particularly sensitive to noise, light and smell, so employers should consider setting aside sensory-friendly work zones, or providing tools and equipment such as screen filters or noise-cancelling headphones.

In some cases, permitting additional homeworking or a flexible schedule may be helpful, so it will be important to consider issues of neurodiversity when deciding on any flexible working request.

Career Development

A neurodiverse individual may be technically excellent but not feel suited for a leadership role (though no assumptions should be made in this regard and employers should encourage open conversation about an individual’s ambitions). Organisations may wish to consider alternative roles and career paths to ensure all individuals are able to advance, even if the management route is not right for them.

Clear Communication

Some neurodivergent individuals struggle to understand social cues or pick up on unwritten rules. Employers and managers should ensure that instructions and expectations are clearly communicated in plain English, to all employees, and avoid relying on subtle hints, confusing metaphors or vague suggestions.

Training and Policies

Employers should ensure that managers have appropriate training on effectively managing a wide range of neurodiverse staff, with particular emphasis on how best to support neurodiverse individuals. Organisations should seek to avoid one-size-fits-all management practices, ensuring that management is tailored to the particular needs of each individual wherever reasonable. For example, some neurodiverse individuals will work best in a rigid routine, while for others flexibility will be key.

A written neurodiversity policy can be a helpful way to sign-post support, highlight potential adjustments and raise awareness. This, in turn, can help avoid discrimination, harassment and victimisation, or claims of failure to make reasonable adjustments.