Supporting neurodiversity

Published 5 December 2022

Jenny Walker, a senior Employment lawyer at international law firm DAC Beachcroft considers how employers can provide greater support to colleagues with neurodivergent conditions.

Neurodiversity is used to refer to neurological or developmental conditions such as autism, ADHD and dyslexia. People who have these conditions, approximately 1 in 7 of the UK population, typically learn and process information differently to the majority of people.

What duties do employers have?

Under the Equality Act 2010, 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.

Many neurodivergent people regard their differences as a strength and may reject this being characterised as an “impairment”. That said, from an employment law perspective, most neurodiverse people will satisfy this definition of disability.

Disabled people have the right to the same protections from discrimination at work that apply to all protected characteristics under the Equality Act. However, the Equality Act also provides that:

• disabled people should not be treated unfavourably because of something arising in consequence of their disability (unless the employer can show that the treatment was justified in the circumstances);
• employers must make reasonable adjustments to remove disadvantages that disabled people face at work because of their disability.

The legal protections start with the recruitment process and continue throughout a person’s employment (assuming the employer knows or ought to know that the person is disabled).

What adjustments can be made?

Employers sometimes struggle to identify suitable adjustments for neurodivergent people. This is partly caused by a lack of awareness about the impact of the condition and the adjustments that might help. Differences in the way that neurodiversity impacts on individuals is also a factor. Adjustments that work for one person might not work for another.

Some employers have concerns about providing adjustments for people with “hidden” disabilities as they are concerned colleagues may see this is unfair. However, from a legal perspective, the reactions of other staff are not a legitimate reason not to make a reasonable adjustment . Training can help other colleagues understand the condition, which can involve challenging perceptions and expectations about neurodivergent behaviours. For example, behaviours that might be perceived as rude or distracted; such as very direct speech, avoiding eye contact or talking over someone could all be features of a person’s autism or ADHD.

How else can support be provided?

It is crucial that employers consult with neurodivergent colleagues about the impact of their condition and the adjustments that might support them at work. In many cases, seeking medical input from an occupational health specialist or the worker’s own doctor is a key part of those discussions.

For eligible workers, an Access to Work assessment may also highlight possible adjustments and access to government grants to fund part of the cost of making adjustments.

Charities such as the National Autistic Society, the ADHD Foundation and the British Dyslexia Foundation also have resources for employers which give guidance on adjustments.

This article was first published in the December issue of Business Insider North West.