Neurodiversity and Employment Law

It is estimated that up to 20% of the population are neurodivergent.

As awareness of neurodiversity continues to grow, more employers are taking proactive steps to create a neuroinclusive workplace.

Neurodivergent employees bring unique strengths such as innovation, creativity, attention to detail, and alternative problem-solving approaches. Microsoft, EY and Bank of America have active neurodiverse hiring initiatives.

A case study by JP Morgan Chase found that professionals in its Autism at Work initiative made fewer errors and were 90% to 140% more productive than neurotypical employees.

What is Neurodiversity?

Neurodiversity describes the idea that people experience and interact with the world around them in many different ways.

Conditions include autism, ADHD, dyslexia, dyscalculia, dyspraxia, Tourette’s syndrome and OCD.

When such conditions significantly impact day-to-day activities, they may amount to a disability for the purposes of the Equality Act 2010.

The Legal Framework – Equality Act 2010

Under the Equality Act 2010, disability is a protected characteristic.

The test for disability is set out under Section 6(1) of the Equality Act 2010 and is as follows

A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

The legal test focuses on whether there is a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. Normal day-to-day activities would include, reading, writing, social interaction and communication. The law disregards any medication or coping mechanisms that would mask the true effect of the impairment.

A condition does not need a formal diagnosis to qualify as a disability.

If a neurodivergent employee is disabled, then it will be unlawful to discriminate against them. This includes direct or indirect discrimination, as well as harassment. It is also unlawful to treat an individual unfavourably because of something arising in consequence of their disability, unless the treatment is a proportionate means of achieving a legitimate aim. If an employee is disabled, there is also a legal duty for employers to make reasonable adjustments.

Compensation awards for successful disability discrimination claims averaged £44,000 in 2023/2024, with a maximum award of £964,465.

Last year, there was 100+ claims in the employment tribunal in which neurodivergence was mentioned.

Duty to Make Reasonable Adjustments

Employers have a duty to make reasonable adjustments where they know or ought reasonably to know that an employee or applicant is disabled. Adjustments are required to remove or reduce disadvantage, and might include:

• Adjusted working hours or remote work options
• Alternative communication methods
• Quiet workspaces or sensory-friendly environments
• Modified recruitment processes (e.g. written questions or skills-based assessments)
• Breaking down instructions into clear steps
• Having early warning of changes at work and extra time to process them.

As people often experience neurodivergence differently, adjustments that suit one neurodivergent employee might not help someone else with the same condition. It is therefore important that employers listen to employees when discussing reasonable adjustments and seek advice from occupational health for example, where necessary.

Even if an employer does not have a legal duty to make reasonable adjustments for a particular individual, it is advisable to consider what measures it can put in place to support a neurodivergent employee as part of its commitment to creating a neuroinclusive working environment and as a matter of good practice.

Supporting an Employee Suspected to Be Neurodivergent Without Disclosure

This is a question which many employers face.

The answer might be as simple as asking the employee how they are, how the work is going, what they need for support and if there are any particular challenges. Line managers should get to know the employee as an individual to build trust and to spot signs or traits that may indicate if they are struggling. This may ask help facilitate disclosure or for the employee to self-reflect.

It is equally important that training and support for line managers is in place.

ACAS Guidance

ACAS recommends several ways to make an organisation neuroinclusive, these include:

• reviewing recruitment processes
• training and supporting managers
• raising awareness of neurodiversity
• considering support for all employees, so neurodivergent employees can get support without having to share their neurodivergence
• having a neurodiversity policy

A good starting point for any organisation on their neuroinclusive journey, would be to review their recruitment processes, training and supporting managers and implement a neurodiversity policy.

Acas advice suggests that any neurodiversity policy should:

• State the employer’s overall commitment to neuroinclusion.
• Acknowledge the employer’s legal responsibilities related to neurodiversity
• Outline what support is available
• Make it clear that employees do not need a diagnosis to get support
• Explain how the employer intends to create a neuroinclusive organisation (for example, through training and awareness).
• Describe how the employer’s processes are neuroinclusive (for example, its recruitment processes or flexible working policy).

Neurodiversity is a powerful yet often overlooked form of diversity. As noted above, hiring neurodiverse employees can bring many benefits to an organisation. It however goes further than that as adjustments made for neurodivergent employees, are likely benefit all employees.

How Pinney Talfourd Can Help

At Pinney Talfourd, we can advise employers across sectors on their legal duties relating to neurodiversity and disability in the workplace. Whether you need advice on reasonable adjustments, policy review, a neurodiversity policy or representation at the Employment Tribunal, we are here to assist. Please do not hesitate to contact our Employment team on 01708 511 000.