Neurodivergence And Reasonable Accommodation: What Employers Need To Know

It is estimated that as many as 15-20% of the global population could have some form of neurodivergence.¹ Neurodivergence is an umbrella term that typically includes autistic spectrum disorder (ASD), attention-deficit hyperactivity disorder (ADHD) and specific learning disorders (SLD), sometimes referred to as ‘dyslexia’.

Employers wondering how they can support neurodivergent employees and encountering requests for reasonable accommodation for the first time may face new and unfamiliar challenges. Unfortunately, it is not always obvious what this means in practice and what an employer’s obligations are. In this article, we look at how and why it is crucial for employers to ensure reasonable accommodations are considered and put in place for those employees who need them.

The Law

Under Irish law, employers have a duty to provide reasonable accommodation to employees and job applicants with disabilities. This obligation comes from the Employment Equality Acts 1998-2021 (“the EEA”) which states at section 16(3)(b) that:

Section 16(3)(c) of the EEA states that

‘Appropriate measures’ is defined in the EEA as meaning “effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned” and “includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources”. However, it doesnot include “any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

In practice, this means the employer must take appropriate steps to enable an employee with a disability to access, participate in, and advance in employment, or to undergo training. Reasonable accommodation should be tailored to each employee’s individual needs and as can be seen from the case law, best practice means engaging meaningfully with the employee, obtaining a proper medical or expert assessment, and genuinely exploring funding and accommodation options before concluding that no accommodation is possible.

Whether a condition qualifies as a disability is a question of law rather than medicine. The definition of “disability” under Section 2 of the EEA is wide reaching and is defined as follows:

1. the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
2. the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
3. the malfunction, malformation or disfigurement of a part of a person’s body,
4. a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
5. a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

Examples of disabilities which have been seen in recent WRC decisions include arthritis, alcoholism, attention deficit hyperactivity disorder (ADHD), autism spectrum disorder (ASD), and endometriosis, among others. The definition in the legislation is broad and is interpreted accordingly in the WRC and Labour Court.

Case Law

The obligation to provide reasonable accommodation has been explored in Irish case law, including in the landmark Supreme Court decision in Nano Nagle School v Daly_² which confirmed that an employer must consider all appropriate measures that could reasonably be taken to accommodate an employee and can only avoid liability by showing that such measures would be disproportionate or unduly burdensome. While the test is of reasonableness and proportionality, and an employer will not be expected to create an entirely new job to accommodate an employee, as you will see from the case law below the defence of ‘disproportionate burden' continues to be construed narrowly by the WRC.

In Dylan O’Riordan v Omniplex Cork Limited,_³ the Complainant was diagnosed with ASD and related mental health difficulties. He repeatedly asked for a more consistent roster with two consecutive days off and no closing shifts, but these requests were not accommodated. Following a workplace incident and a period of certified sick leave, occupational health assessments recommended set working hours rather than variable shifts, earlier rather than later shifts, structured breaks, a quiet space/noise-cancelling headphones, and a formal workplace needs assessment. While the Respondent made three roster proposals, the Complainant felt that his needs were not fully accommodated and he ultimately resigned and lodged a WRC complaint.

In the WRC, the Respondent failed to successfully argue that accommodating the Complainant’s requests would impose a disproportionate burden on the Respondent. It was accepted that the Respondent did provide some accommodations (such as setting up a quiet space for him to take breaks, providing noise-cancelling headphones and making rostering proposals with revised rostering arrangements), however the WRC ultimately held that these accommodations fell short of what was required and awarded the Complainant €12,000 in compensation. This award was later increased to €29,000 on appeal to the Labour Court._⁴

This following dictum from the Labour Court decision outlines the burden which employers face when addressing reasonable accommodation to demonstrate that they are ‘truly committed’ to facilitating the Complainant:

In An Interior Designer v A Property Advisory Firm_⁵, the Complainant had been diagnosed with ADHD and was employed as an Interior Designer until she resigned due to alleged mistreatment by her Team Lead. However, as the Complainant only had 6 months service, she did not have the service to bring a constructive dismissal claim under the Unfair Dismissal Acts and instead, her claim was brought under section 13 of the Industrial Relations Act, 1969. The mistreatment alleged by the Complainant included unfair criticism, lack of mentorship, and unnotified review meetings. The Complainant had raised the matters informally with the HR team and commenced a period of sick leave. The Complainant had been open to returning to work and sought accommodations to facilitate her needs, including a different reporting structure, seating change, occasional remote working opportunities and other ADHD-related supports. The Complainant also claimed that a Performance Improvement Plan (PIP) had been introduced during an initial grievance meeting which was unfair and coupled with the fact that her requested accommodations could not be guaranteed, she resigned.

It was argued by the Respondent that the Complainant had pre-existing performance issues which resulted in the PIP and the company had made efforts to address her grievances and facilitate her return to work, but that the accommodations sought were not practical for operational reasons and that she had acted unreasonably by resigning before the internal grievance process concluded. The Respondent argued that failure to allow the conclusion of the grievance process prior to her resignation meant the complaint could not succeed.

In finding for the Complainant, the Adjudication Officer held that while the internal grievance procedures should be exhausted before an employee resigns and refers the matter to the WRC, there are some circumstances where concluding a grievance process is impossible because of a perception of unfairness or other issues that result in the employee’s lack of trust and confidence in the grievance process. The Adjudication Officer held the Complainant acted reasonably in her decision to resign from her employment and the “requests for accommodation were not considered in any meaningful way by the employer”. As this was a complaint under section 13 of the Industrial Relations Act, 1969, the recommendation of the Adjudication Officer was non-binding, and it was recommended that the Respondent pay the Complainant €8,000.

While not a case involving a neurodivergent employee, the Complainant in A Complainant v A Large Retail Store_⁶had been diagnosed with Alzheimer’s disease and alleged discrimination on grounds of disability, failure to provide reasonable accommodation and harassment. Occupational Health and the Complainant's doctor had recommended fixed daily shifts and written memory aids or planograms. Fixed daily shifts were implemented by the Respondent, but the written instructions and planograms were not, and the Respondent made no enquiries of the support group the Complainant's partner had identified.

The Adjudication Officer in this case found there was a lack of coordination by the Respondent and no proper, comprehensive assessment of what reasonable accommodation could be provided. The WRC also held that that the onus to contact external supports was wrongly placed on the Complainant's partner rather than the Respondent. The Complainant was awarded €25,000 in compensation for failure to provide reasonable accommodation and the Respondent was directed to review its policies with relevant trade unions on the accommodation and treatment of staff with disabilities. This case again shows the lengths that employers will be expected to go when considering reasonable accommodation requests from employees and the importance of following medical recommendations unless it can be demonstrated that the recommendations are a ‘disproportionate burden’ to the employer.

Practical Tips for Employers

While the duty to provide reasonable accommodation is not infinite, it is clear from the emerging case law that employers should be mindful that the defence of ‘disproportionate burden’ is typically given a narrow interpretation by the WRC. In light of this, employers should:

• Consult early and meaningfully with employees who disclose a diagnosis and request reasonable accommodations.
• Consider medical evidence carefully and carry out proper assessments to be able to determine what appropriate measures can be put in place. Occupational Health referrals might be necessary.
• Document the procedure from start to finish including the steps taken to assess the accommodation needed, the different avenues explored to facilitate the needs, and the reasons why they were, were not or could not be implemented should all be recorded.
• Review the company’s policies with a focus on inclusion and accessibility and make sure managers and HR teams are trained and aware of their obligations.

Footnotes

^{1. https://pmc.ncbi.nlm.nih.gov/articles/PMC7732033/} 

^{2. Nano Nagle School v Daly [2019] IESC 63 linked here}

^{3. Dylan O’Riordan v Omniplex Cork Limited ADJ-00051601 linked here}

^{4. Omniplex Cork Limited v Dylan O’Riordan EDA2620 linked here}

^{5. An Interior Designer v A Property Advisory Firm IR-SC-00004781 linked here}

^{6. A Complainant v A Large Retail Store ADJ-00064610 linked here.}

Co-authored with Emma Wroblewski, Trainee Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.