Neurodiversity and Reasonable Adjustments in the Workplace

Neurodivergent people often bring great creativity to the workplace and different ways of thinking, which can be very beneficial for businesses and teams. Employment lawyer, Kate Lawson, director of Element Law, outlines how you can make your company naturally neuroinclusive to attract employees with wider skills and experience and improve staff wellbeing. 

What is neurodiversity?

Neurodiversity is a term now in common use and therefore one most people are likely to have come across.  As 15% of the UK population, or 1 in 7 people, are neurodivergent, most workplaces have neurodivergent employees.

As well expressed by ACAS, the term describes the natural differences in how people’s brains behave and process information.  The term encompasses a wide range of “conditions”.  Some well-known types of neurodivergence are:

• Attention Deficit Disorder (ADHD)
• Autism
• Dyslexia
• Dyspraxia
• Dyscalculia

It is common for a neurodivergent person to have more than one type of neurodivergence.

Legal protections for staff who are neurodivergent

It is important for employers to be aware that a neurodivergent employee or worker may potentially be disabled under the Equality Act 2010.  This will be the case if the person’s neurodivergent condition:

• is long term, meaning it has lasted or is likely to last for at least 12 months
• has a substantial adverse effect, meaning it has more than a minor impact
• on their ability to carry out normal day-to-day activities, meaning on things people do in their home and social life and that let people participate fully in their working life.

It is often difficult to identify if a condition is a disability, particularly as many of these conditions are spectrum conditions with a range of impacts.  The other issue is that these conditions are often what are described as “invisible” disabilities.

In practical terms this means, for example, that an employee need not have a diagnosis of autism for their condition to meet the definition of disability. Further, if they have a diagnosis of autism but have not told their employer about this diagnosis – or indeed have never discussed the condition with their employer – the employer may however be considered to have imputed knowledge of the disability if there have been sufficient signs of this in the workplace.

For example, if an employer is aware that their employee, Tim, really struggles with communication, social situations and anxiety, even if Tim has never discussed his autism with his employer, potentially the employer should have known/should know Tim has autism.

Employers’ duties towards neurodivergent staff

If an employee is disabled, and the employer has actual or imputed knowledge of this, the employer is under a positive duty to make reasonable adjustments to remove or reduce the disadvantages to the employee related to their disability.

The word ‘reasonable’ is important as it means the adjustment must be practical and affordable to make as assessed, based on the size and available resources of the employer. For example, a small business would not be expected to make the extent of reasonable adjustments that may be expected of a multi-national corporate.

The adjustment must also remove or reduce the disadvantage; this is an important point as some adjustments recommended by health professional including GPs are not really sensible methods of reducing or removing any such disadvantage. If an occupational health practitioner or doctor recommends a reasonable adjustment which doesn’t make sense in relation to the specific disability, it is fair for an employer to explore whether and how this would or may reduce or remove any disadvantage caused by the disability.

It is important to note that the employer does not have to change the basic nature of the job.  ACAS gives the example that if someone in a call centre asks for a job that does not involve taking calls as an adjustment for their disability, this might not be reasonable if there is no other job to give them.

Supporting neurodivergent staff to succeed at work

The best approach with a neurodivergent employee is to discuss with them what reasonable adjustments may assist them in the workplace.  It is advisable to then confirm in writing the adjustments agreed with the employee, and to meet from time to time to review these adjustments.

It is also a good idea to obtain advice from a workplace health professional, such as an occupational health or vocational rehabilitation specialist.

The employer should also work with the employee to seek advice and potential financial support from Access to Work, the government scheme to help disabled people get into and stay in work.

Working from home – not a magic wand for neurodivergent employees

A common adjustment recommended by occupational health and doctors for neurodivergent employees is to allow them to work from home, with no or little office attendance.  If this works well for your business, and is your usual model, then that may be ok.

However this common recommendation is somewhat controversial as there are differing views in the health community as to whether working from home full time or most of the time in fact removes any identifiable disadvantage for many neurodivergent employees.

It is not uncommon for employees to request this adjustment and for health professionals to recommend this based on the employee’s request, without considering whether this is in fact helpful to the employee.  Allowing more working from home than colleagues can in fact isolate neurodivergent employees from the team, causing greater disadvantages.

Employers and staff should consider what issue the adjustment is trying to solve, and whether it does help, or whether there is a better alternative.  For example if the issue is travelling during rush hour, then it may be better to allow the employee to stagger their hours to avoid rush hour travel; if the issue is distraction and noise in the workplace, consider instead allowing use of a quiet room and of noise-cancelling headphones in the office.

Failure to make reasonable adjustments for neurodivergent staff

A failure to make reasonable adjustments to reduce the disadvantages to a disabled employee can lead to a claim for disability discrimination.  For example, if an employee goes off sick and is on statutory sick pay only because they can’t work due to the failure by their employer to make reasonable adjustments, they could claim for their loss of earnings and injury to feelings as a result of the breach of the employer’s duty to make reasonable adjustments.

The employer could defend this by saying they didn’t know of the disability or that they have made reasonable adjustments and the further adjustments required were not reasonable and/or would not alleviate the disadvantage/s faced by the disabled employee.

Making your company naturally neuroinclusive will do more than help you avoid workplace disputes and legal claims – it will enable you to benefit from the widest pool of talent. ACAS provides helpful guidance on making your workplace neurodiverse.

 

MEET THE EXPERT

The director of Element Law, Kate Lawson is a specialist employment law and HR solicitor for businesses and employees across the country. She also provides bespoke HR Training and Mediation Services.