Neurodiversity refers to the differences in brain processing that can affect social interaction, learning, attention, and/or sensory processing. It encompasses a range of neurological conditions, including autism spectrum disorder, ADHD, dyslexia, and dyspraxia.
While neurodiversity is certainly not a new concept, it is something employers are increasingly having to grapple with because of a growing number of people being diagnosed with neurodiverse conditions in adulthood.
This increase in the number of people being diagnosed is broadly reflected in the number of Employment Tribunal claims being submitted. The number of Employment Tribunal claims where the Claimant cites discrimination because of a neurodiverse condition has increased year on year between 2020 – 2023. And whilst this year is still drawing to a close, this upward trend in the number of claims seems to have continued into 2024.
Neurodiversity and the Equality Act 2010
Neurodivergent conditions are not automatically protected as disabilities under the Equality Act 2010. Whether a condition meets the definition of a 'disability' will depend on whether it has a substantial impact on an individual's ability to carry out day to day activities, and neurodiverse conditions usually exist on a spectrum - meaning that the impact the condition has on the individual needs to be assessed on a case-by-case basis because it will vary from person to person.
That said, it is important for employers to recognise that neurodiverse conditions certainly can be protected as disabilities. Care needs to be taken not to inadvertently discriminate against an employee because of their condition, which includes considering whether there are any reasonable adjustments that can be made to remove barriers that could place neurodivergent employees at a disadvantage. The question of whether an adjustment is reasonable will vary from job role to job role and from employer to employer. However, examples include providing assistive technology, offering flexible working arrangements, and adjusting communication styles.
Practical steps for employers
With an increase both in the number of people being diagnosed and in the number of Tribunal claims being made, there are series of proactive steps employers can take to help them adjust for neurodiversity in the workplace.
- Increase awareness and training
Provide line managers and staff with training to understand neurodiversity, focusing on the benefits of diverse perspectives, and the challenges neurodivergent employees may face (for example, communication differences).
- Make reasonable adjustments
Occupational health referrals will help employers establish what adjustments and support a neurodivergent employee may require. However, that is no substitute for engaging in open dialogue with an employee to understand their individual needs. Common adjustments include flexible working arrangements, alternative methods of communication, task structuring and the provision of technologies. Adjustments should be made to help the employee fulfil their role but that are also proportionate to the business.
- Review your procedures
As an extension to considering reasonable adjustments, employers should review their practices and procedures. For example:
- traditional recruitment processes can place some dyslexic
candidates at a disadvantage. Employers should consider alternative
approaches which will allow neurodivergent candidates to
demonstrate their abilities in a more suitable setting.
- During any disciplinary investigation involving a
neurodivergent employee, consideration should be given to their
neurodiversity when assessing their conduct.
- traditional recruitment processes can place some dyslexic
candidates at a disadvantage. Employers should consider alternative
approaches which will allow neurodivergent candidates to
demonstrate their abilities in a more suitable setting.
- Foster an inclusive culture
Encourage a workplace culture where diverse thinking styles are valued and which supports employees who are neurodivergent. Greater inclusivity and awareness of neurodivergence across the workforce will help prevent grievances and harassment claims from arising.
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.
