Understanding Neurodiversity

Neurodiversity refers to the different ways in which people’s brains work and interpret information. These differences are natural and should be recognized and valued in the workplace. Neurodivergent individuals may have unique strengths and capabilities that can be beneficial to an organization. According to ACAS, neurodiversity illustrates that people naturally think about things differently, have varied interests and motivations, and are better at some tasks while less proficient at others. It is estimated that around 1 in 7 people in the UK are neurodivergent.

Legal Framework: Equality Act 2010

The Equality Act 2010 provides protection against discrimination for individuals with disabilities, including those who are neurodivergent. Under the Act, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

Types of Discrimination:

• Direct Discrimination: Treating someone less favourably because of their disability.
• Indirect Discrimination: Policies or practices that disadvantage neurodivergent individuals and that cannot be objectively justified.
• Harassment: Unwanted behaviour related to disability that violates a person’s dignity or creates an intimidating environment.
• Discrimination Arising from Disability: Unfavourable treatment because of something arising in consequence of a disability.
• Victimisation: Treating someone unfairly because they have complained about discrimination or supported someone else's complaint.
• Failure to Make Reasonable Adjustments: Not making reasonable changes to help a disabled person overcome a substantial disadvantage.

Some research and our own experience indicate that there has been a significant increase in employment tribunal claims involving neurodivergent discrimination, which emphasises the importance of compliance and taking proactive measures in HR practices.

Reasonable Adjustments: Obligation and Knowledge

Employers are legally required to make reasonable adjustments to accommodate neurodivergent employees (where their condition amounts to a disability). These adjustments can involve changing provisions, criteria, practices (PCPs), or physical features of the workplace to prevent substantial disadvantage.

Examples of reasonable adjustments are:

• Modifying workstations or equipment.
• Flexible working hours.
• Adjusting communication methods.
• Providing additional training or support.

Employers must have either actual or constructive knowledge of an employee’s disability to be required to make reasonable adjustments.

The courts addressed this issue in the case of SoS for Dept of Work & Pensions v Alam (2010).  They concluded that the key questions were whether the employer actually knew or ought to have known about the employee’s disability and the substantial disadvantage they faced.  If the answer is “no” to both questions, an employer is not required to make adjustments.

Practical Considerations for HR

HR professionals need to assess neurodivergence on an individual basis.

It is crucial to understand how neurodivergent conditions affect each employee uniquely and you should not make assumptions without evidence or reliable information.

Factors to Consider:

• Efficacy: Will the adjustment help the employee perform their job?
• Cost: Reasonableness of adjustments considering the financial impact on the organisation.
• Employee Engagement: Encouraging open communication to understand the needs and preferences of neurodivergent employees.

Recruitment and Neurodiversity

Recruiting neurodiverse individuals can offer substantial advantages. For instance, JPMorgan Chase reported that their autistic employees achieved, on average, 48%-140% more work than their neurotypical colleagues.

Traditional assessment methods and interviews can disadvantage neurodivergent candidates.

Best Practices for Recruitment:

• Flexible Assessment Methods: Avoid rigid testing formats that may not accommodate neurodiverse candidates.
• Interview Adjustments: Allow alternative formats or provide additional time for responses.

The case of Government Legal Service v Brookes [2017] is a good example where the court ruled in favour of a neurodivergent applicant who required reasonable adjustments during the recruitment process.  In this case it was it was a failure to offer an alternative to a multiple choice test during a recruitment process.

Conclusion

Neurodiversity brings valuable perspectives and skills to the workplace. By understanding the legal obligations and adopting best practices, HR professionals can create an inclusive environment that supports all employees. Ensuring compliance with the Equality Act 2010 and making reasonable adjustments are not just legal necessities but also steps toward fostering a diverse workforce.

For further information and professional advice tailored to your specific circumstances, feel free to contact our team at Hempsons. Our expertise in employment law can help you navigate the complexities of neurodiversity in the workplace and ensure your HR practices are both inclusive and compliant.

Andrew Davidson
Partner and National Head of Employment
Hempsons
Email: a.davidson@hempsons.co.uk
Phone: 01423 724129
Mobile: 07740 828 724
Twitter: @andrew_davidson

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