Neurodiversity: a legal perspective

Around one in seven people in the UK are neurodivergent, but representation in the workplace remains low, and barriers to entry and career progression persist.

A recent study by Birkbeck found that 65% of neurodivergent employees fear discrimination at work, despite companies increasingly recognising the need for inclusivity and the advantages that diversity brings to the workforce.

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HR lacks training to help struggling neurodivergent staff

Neurodiversity in the workplace: why office life isn’t for everyone

To translate awareness into inclusion, employers must consider how their practices impact neurodiverse employees at each point in the work cycle.

It’s clear that not all neurodiverse conditions will meet the legal test for disability under the Equality Act 2010, but employers needn’t be constrained by the law in seeking to realise the advantages of greater diversity.

Companies should regularly assess whether workplace practices place neurodiverse employees at a disadvantage – whether amounting to disability discrimination or not – and if the duty to make reasonable adjustments has arisen.

For neurodiverse job applicants and employees, significant barriers can be removed by altering interview and performance review processes.

In these processes place more emphasis on objective achievements and experience rather than subjective assessments of interpersonal skills based on social cues, eye contact and body language, which pose challenges for many neurodiverse individuals.

In daily working life, many neurodiverse employees see better results with adjustments that are relatively simple for companies to implement, such as accompanying verbal instructions with visual or written ones and providing breaks and quiet spaces to avoid sensory overload.

When the legal duty to make reasonable adjustments does arise, it’s worth seeking input from medical or occupational health advisors.

M&S came unstuck in a recently reported case where the employment tribunal found it was unreasonable for M&S to reject its employee’s explanation of the impact dyslexia had on her performance without seeking any expert opinion.

In Morgan v Buckinghamshire Council, an employee was within their rights to refuse an occupational health assessment, but the appeal tribunal recognised the council’s efforts to understand the impact of an employee’s autism on the likelihood of repeated misconduct before deciding to dismiss.

This was considered a key factor when it concluded the dismissal was within the range of reasonable responses.

Matters can be complicated where employees are unwilling to disclose their neurodiversity or do not see themselves as disabled, because employers can still be on the hook if they have “constructive knowledge” of a disability. But the recent case of Fabian v City Plumbing Supplies offers some reassurance.

The tribunal held that Fabian’s employer could not reasonably have been expected to know of his autism where Fabian had expressly stated in a medical questionnaire that he was not disabled and had not subsequently made his condition known after diagnosis the following year.

There is a risk of a vicious cycle here. If employees do not feel comfortable disclosing their needs for fear of discrimination, how can companies really get to grips with what those needs are and implement changes that make the workplace more inclusive in the first place?

Navigating what employers can ask about employees’ conditions and the steps it should take can feel like a legal minefield.

As ever, UK GDPR is relevant: employers must be mindful of the greater protections required when processing health data.

But these protections are not a total ban, and medical and equal opportunity questionnaires can be a useful way to gain visibility of potential conditions and employee needs.

Whilst more commonly used with new joiners, employers should consider inviting employees to update these records during employment to help keep abreast of changing needs.

Better still, if organisations work to create an open, informed and inclusive culture more generally, employees will feel more comfortable disclosing diversity without fear of discrimination or detriment.

Training, 'reverse mentoring' and encouraging open discussion can help to reduce stigmas and miseducation around neurodiversity, which may not be visible or manifest in the way you might expect.

Morgan is an important reminder of this – the employer’s statement that Morgan had deceitfully “masked” her autism demonstrated a clear lack of understanding and amounted to harassment.

Better understanding of neurodiversity can protect employees and employers alike from making the same mistakes and help foster a genuinely inclusive workplace.

Jenny Allan is an associate at specialist employment law firm GQ Littler.