· 3 min read · Features

Actively employing autistic workers could be a legal minefield

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It was recently reported that German software company SAP is seeking to recruit hundreds of people with autism as it believes they have a unique talent for IT work.

SAP said by 2020 it expected 1% of its 65,000 employees worldwide, to have autism.

Actively encouraging autistic people into the workplace is a positive development, however, by targeting this group vulnerable people could be exploited based on a stereotypical assumption about their characteristics.

SAP or any other organisation seeking to recruit autistic candidates in the UK will need to be aware of the relevant legal framework, in particular the Equality Act 2010.

Legal framework

The Act protects both job applicants and employees against discrimination because of a protected characteristic. Disability is one of the protected characteristics. A person has a disability if 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".

A person with autism would usually be able to satisfy the legal definition of disability.

Direct discrimination: claims by non-disabled applicants?

To bring a direct discrimination claim it is not necessary for a claimant to have the protected characteristic themselves simply that they have been treated less favourably due to a protected characteristic.

Any policy to only employ autistic people in certain roles could therefore be regarded as less favourable treatment of a non-disabled person because they do not have the required disability.

However, the Act expressly provides that treating a disabled person more favourably than a non-disabled person is not discrimination. It is therefore likely that any direct discrimination claim by an unsuccessful applicant without autism could be successfully defended.

Reasonable adjustments for autistic job applicants and employees

At the recruitment stage and throughout any employment relationship, employers must make reasonable adjustments for a disabled person where they are put at a substantial disadvantage by an employment provision, criterion or practice (PCP).

Making reasonable adjustments may involve making changes to working practices or the physical working environment. An example might be allocating an autistic employee a private office, which provides a quiet environment rather than placing them in an open plan office where they may feel less comfortable.

Indirect disability discrimination

A company may have a PCP (including employment contract terms, policies or rules) which applies to everyone, but which particularly disadvantages someone with autism. Unless the employer can show a reasonable business case for applying the PCP it will be indirectly discriminating against the autistic employee and may also be failing in its duty to make reasonable adjustments if it fails to display or mitigate the PCP.

Pre-employment health questions

The Act contains a general prohibition on asking about a job candidate's health until a job offer has been made. This ban is subject to certain exceptions:

Ascertaining whether a reasonable adjustment is needed for the recruitment process.

Implementing positive action measures.

Where the job has an occupational requirement for someone with a specific impairment, establishing that the person has such impairment.

Tips for employers

A company seeking to shape its workforce and target those with a particular disability will need to proceed sensitively:

Acting reasonably and proportionately is likely to mean avoiding absolute policies such as only employing autistic or non-autistic people in certain roles.

Encouraging autistic people to apply for jobs is fine, but keeping an open mind about the suitability of non-autistic people is advisable.

Maintaining purely skills based person specifications for jobs which allow a truly objective assessment of an applicant's abilities is a good defence against claims.

Stereotypical assumptions such as "all autistic people are good at IT" should be avoided and each applicant assessed on their individual merits.

The business case for any recruitment policy - demonstrating the real needs of the business will be helpful in the event of any legal challenge.

The possibility of indirectly discriminating against disabled employees through neutral looking contract terms and policies e.g. absence management policies should not be overlooked.

Remember the continuing duty to make reasonable adjustments for disabled employees throughout their employment - their needs could change over time.

Putting in place an equal opportunities/diversity policy that is communicated to the workforce at large and genuinely shapes the culture can be a good basis for change.

Support and training for managers of disabled employees may be required as they may need to behave differently towards some employees to get the best out of them e.g. the appraisal process for an autistic employee may need to be adjusted.

Katy Meves employment law specialist at law firm Shoosmiths