Neurodiversity in the workplace

With one in seven of us in the UK being neurodivergent, to work effectively together, employers need to develop a culture that embraces the differences between us.

Neurodiversity is a term that refers to the natural variation in human brains and the ways to process information. Conditions such as autism, dyslexia, ADHD, and others fall into this category. It’s often assumed that neurodivergence is a disability, but that assumption is incorrect.

The Equality Act 2010 protects individuals from discrimination based on one of nine protected characteristics, which includes disability. The Act defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.

While neurodivergence can fall into this definition, the onus is placed on an employer to determine whether or not someone meets the criteria in the definition and has a disability.

If the employee does have a disability, then there is a proactive obligation on employers to make ‘reasonable adjustments’.

The legal duty to make reasonable adjustments for employees with disabilities is designed to help them overcome any substantial disadvantage they may face in the workplace. Reasonable adjustments can include changes to working hours, equipment, training or support.

What is ‘reasonable’ is assessed on a case-by-case basis and takes into account, for example, the employer’s financial resources to make adjustments. For neurodiverse individuals, the type of reasonable adjustments that need to be made is likely to vary. So, for example, an employee with dyslexia may require assistive technology such as text-to-speech software or a coloured overlay to help them read and comprehend written information. An employee with autism may require a quiet workspace or the option to work from home to help them manage a sensory overload.

It’s important that an employer understands and recognises that employees who are neurodivergent have unique strengths and abilities which can benefit the workplace. For example, individuals with ADHD may be highly creative and able to think outside the box, while those with autism may excel in tasks that require attention to detail and analytical thinking.

With dyslexia, they may have strong verbal communication skills and the ability to think creatively. Employers can benefit from neurodiversity by recognising and accommodating individual differences, creating a supportive and inclusive workplace culture, and providing appropriate training and resources for managers and employees. By doing so, they can harness the strengths of all employees and create a more innovative and effective workforce.

Employers who fail to make reasonable adjustments for neurodiverse employees who have a disability are likely to face tribunal claims for unlawful discrimination. This can be costly not only from a time and financial perspective, but also potentially damage their reputation as an employer.

It’s worth keeping in mind that in addition to the Equality Act 2010, employers must also consider the Health and

Safety at Work Act 1974, which places a duty on employers to ensure the health, safety and welfare of their employees while at work. Employers therefore have to consider any risks or hazards that may be present in the workplace for any neurodivergent individual. Employers should carry out risk assessments to identify any potential hazards and take steps to eliminate or reduce them where possible. For example, an employee with autism may be particularly sensitive to fluorescent lighting, so an employer could replace such lighting with natural or softer lighting.

One other challenge with neurodiversity is that it is less visible than physical disabilities which means employers will have to rely on individuals making them aware of the fact they have a neurodivergent condition. Many employees do not disclose they have a disability or are neurodivergent before they are recruited or when they start work because they fear they will be discriminated against.

This ends up potentially being a no-win situation though, as often the employer only finds out about the condition when they have concerns about an individual’s performance or conduct at work. At that stage the relationship may then be irreparably damaged because the employer may think the employee has acted disingenuously by not telling them about it before. However, if the employer had known, they could have made adjustments to the role to avoid the performance concerns arising in the first place.

As with any relationship, honesty is the best policy. However, if an employee has had a bad experience in the past, they may be reluctant to disclose information about their condition. If employers do want to benefit from having a diverse, motivated and productive workforce, it’s important to develop a culture which encourages staff to be open and transparent, knowing that it will benefit everyone in the long run.

Pam Loch, Solicitor and Managing Director of Loch Associates Group www.lochassociates.co.uk

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