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Neurodiversity and your workforce

Neurodiversity and your workforce
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Neurodiversity and your workforce
Kate Lawson - Element Law by Kate Lawson - Element Law
Director - Element Law

Having a diverse team can bring refreshing perspectives to your business, expanding creative problem solving and strategic thinking – environmental campaigner, Greta Thunberg, has famously attributed her achievements to the fact that she thinks differently. Promoting a work culture that supports neurodiversity can help you attract and harness a broader range of talent to strengthen your business. Kate Lawson of Element Law guides you through the benefits of neurodiversity and inclusion for your business and your legal obligations.

The benefits of a neurodivergent workforce

If you’re nervous about taking on neurodivergent employees, rest assured that many household names are open about their differences – which in many cases have inspired and fuelled their achievements – including:

Managing difference may mean rethinking how we do things, but there are clear benefits and competitive advantages to having employees who think differently. Positive attributes commonly associated with neurodivergent employees include creativity, innovation, lateral thinking, strategic analysis and the bringing of a 'different perspective’ to business discussions, plans and solutions.  Promoting an environment of diversity and inclusion in relation to neurodivergent individuals can reap rich rewards in terms of the breadth of talent in your workforce.

What do we mean by neurodiversity?

Neurodiversity is an increasingly common term which refers to the different ways the human brain can use and interpret information.  It is in essence a collective term for a range of neurological conditions, including attention deficit disorder, autism, dyslexia, dyspraxia, dyscalculia, dysgraphia and Tourette’s syndrome.  It is estimated that one in seven people in the UK is neurodivergent. 

This means it is very likely that your workforce includes employees who manage one or more of these conditions.  Of course, each condition is very different, as each individual is different.  It is also key to note that these are “spectrum conditions” which have a range of associated characteristics, and therefore the characteristics displayed by an employee with one or more of these conditions will not necessarily match another employee with the same condition(s).  Therefore, it is not helpful or possible to treat all employees with a neurological condition in the same way. 

However, there are some key points of which employers should be aware in relation to employees who fall within this group.

Legal protection for neurodivergent employees

An employee with one of these conditions is disabled under the definition in the Equality Act 2010 if their “impairment” has a “substantial and long-term adverse effect” on their “ability to carry our normal day-to-day activities”.  Remember too that an employee does not have to have had a formal diagnosis of their condition to be considered a disabled person under the Equality Act.

As with any disabled applicant, a neurodivergent employee does not need to declare this when they apply for a role with an employer, whether or not their condition meets the definition of disability under the Equality Act.  If their condition is a disability and they do declare this, taking this into account in the decision as to whether to hire them is likely to amount to disability discrimination.  A candidate who is not hired and who suspects it is because of their disability will have a claim for disability discrimination. 

There are various forms of disability discrimination, which includes discrimination on the grounds of something caused by the disability rather than because of the disability.  This applies for example if you do not hire a candidate who has declared they are dyslexic, and you say it is not because they have dyslexia per se but because they have failed a standard spelling test which candidates must pass in order to be interviewed.  This is likely to amount to disability discrimination as failure of the spelling test is caused by the disability (dyslexia).

Reasonable adjustments to support neurodivergent staff

In relation to employees who meet the definition of disability, an employer is under a legal obligation to make reasonable adjustments to the workplace and the role to remove or minimise any disadvantage to them as a result of the disability.

What amounts to reasonable adjustments that you may be required to make will depend on the size and resources of your business, as well as, of course, on the condition and the individual. Reasonable adjustments do not have to be complex or costly; they may include allowing more frequent rest breaks, allowing agile working, providing special screens and keyboards, giving access to quiet spaces rather than open-plan working, providing noise-cancelling headphones, and adapting the methods and structure of communication.   

It is irrelevant whether you knew of the employee’s neurodivergence when you took them on or if you have actual confirmation of a disability from the employee direct or otherwise; the duty to make the adjustments will arise as soon as the employer ought reasonably to know the employee is disabled and that the employee is likely to be placed at a substantial disadvantage. The onus is on you as the employer to implement this support if you have knowledge, whether actual or implied, of the disability, and of the substantial disadvantage the disabled person may suffer in the context of their work and working conditions. 

It is also important to note that the requirement to make reasonable adjustments also applies equally to candidates as to employees.  Therefore, in the example above concerning the dyslexic candidate, you would need to make reasonable adjustments in relation to the spelling test, such as lowering the pass mark and/or giving the candidate the opportunity to use online tools or other aids to complete it and/or extending the time for completion of the test.

The benefits of an openly supportive work culture

It is also important for managers to be aware that problems with performance may arise if employees are reluctant to discuss the impact of their condition on their work and the need for additional support.  Encouraging open communication and being clear about the commitment to diversity and inclusion should mean employees are more willing to speak up about their condition and the challenges this presents, enabling you to find solutions with them to help them succeed.  It also reduces the risk of claims for disability discrimination and failure to make reasonable adjustments. 

Demonstration of an understanding and awareness of neurodiversity by you as an employer can greatly aid neurodivergent employees, and this can be achieved by training managers and increasing general awareness of these conditions through networks, discussions and blogs.  

Attracting and supporting a wider range of employees can bring fresh perspectives to your business, enabling you to identify fresh opportunities and new ways of doing things. Encouraging and supporting neurodiversity among your employees can be a win-win.

MEET THE EXPERT

Kate Lawson is a specialist employment solicitor and lawyer. Her company, Element Law, offers solution-driven employment law and HR advice to employers and employees – a refreshing approach to employment law.

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