Neurodivergence: A Practical Guide

It is thought that up to 20% of the UK population may be neurodivergent, which can be genetic or caused by injury. Neurodiverse individuals commonly have a co-occurrence of one or more neurotypes.

Employer’s legal duty

Employers can be held liable for disability discrimination if it can be shown that they knew – or could reasonably have been expected to know – about an employee’s disability. While neurodivergent conditions may not always be visible, they can qualify as a disability. Employers are still obligated to act if the condition is evident without a diagnosis or disclosure.

Where an employer knows or ought reasonably to know about a neurodivergent condition, they are legally required to make reasonable adjustments to remove or reduce any disadvantage faced by the employee.

Terminology confidence

Neurodiversity is the concept that an individual’s brain is unique and works differently. Every person thinks, learns and processes information differently, and each has individual strengths and weaknesses. Neurodiversity can refer to the range of ways that people think, learn and behave.

Neurodivergence refers to individuals whose brain functions differ from the typical or neurotypical way. Common categories of neurodivergence (or neurotypes) include autism, ADHD, dyslexia, dyspraxia, dyscalculia and Tourette’s Syndrome.

Neuroinclusion is making an organisation more inclusive for neurodivergent colleagues, so that they feel valued and supported. Neuroinclusive workplaces aim to be welcoming and accommodating to all ways of thinking.

Practical management guide

Diagnosis: A diagnosis can only be provided by a qualified medical professional, and employers must not try to diagnose their employees, but instead focus on the support which can be provided. Neither a medical diagnosis nor medical evidence is required to establish a disability under the Equality Act 2010. If an employee suspects themselves of having a neurodivergence and this places them at a disadvantage, then reasonable adjustments must be considered.

Disclosure: A potential or new employee does not have to disclose either a disability or neurodivergence. If a disclosure is made or a disability is suspected, the employer has a legal responsibility to support them and create an environment that is safe and accepting. Many employees do not realise that their condition is considered a disability by law, or do not think of themselves as disabled.

Reasonable adjustments: are changes to the working environment or working arrangements which an employer can make to remove or reduce a disadvantage related to a person’s neurodivergence or disability. They are unique to each individual, so employers should consult with the relevant employee and not make assumptions about reasonable adjustments. Employers should consider whether a particular adjustment is practical, affordable or whether it could harm the health and safety of others. The employer does not have to change the basic nature of the job or make adjustments that are unreasonable.

Medical evidence: A person with a suspected or diagnosed neurotype does not have to provide medical evidence or an official diagnosis to their employer, although doing so might be useful in determining reasonable adjustments. It might be agreed between the employer and the employee that an Occupational Health assessment or a doctor’s opinion might be helpful. An employer must obtain the employee’s permission before requesting a report regarding their health.

Recruitment: Employers must make reasonable adjustments for job applicants and interviewees at any stage of the recruitment process.

Access to work: This is a government scheme to help people with physical or mental health conditions or disabilities to get or stay in work. However, Access to Work does not substitute an employer’s responsibility to make reasonable adjustments, and employers should not wait for Access to Work assessments before doing so.

Special category data: Sensitive health information, such as a neurodivergence, is classed as special category data under UK GDPR. This means it is highly confidential information and must not be disclosed without the consent of the individual to whom it refers. This includes the sharing of special category data with line managers and colleagues.

Awareness: Occasionally, a reasonable adjustment for one employee might cause friction amongst other members of the staff body. For example, a reasonable adjustment might include alternative start times, hybrid working or flexibility in a uniform policy, which are easy for others to identify. Ensure that there are opportunities for education and training for staff, including neurodiversity awareness campaigns, national events or the sharing of the lived experiences of staff members who are happy to discuss their neurodiversity.

Management: All line managers should have a good awareness of the different neurotypes and neurodiversity. Managers need to be able to communicate clearly, treat each team member as an individual and treat any disclosures with the utmost discretion. They should also conduct regular one-to-one meetings and monitor workloads so that they can continually reflect on the position of their neurodivergent staff.

Capability: If a person is unable to perform their job remit or meet their employer’s standards due to their neurodivergence, then capability and performance procedures can be used to investigate. The employer must ensure that reasonable adjustments and support have already been implemented. Dismissal may be a justifiable, reasonable option following investigation where the employer can evidence that everything possible has been tried to remove barriers for the employee, there are not suitable alternative roles, there is no other way that the job can be done, and all circumstances have been considered.

Cooperation: Cooperation between an employer and employee is a reasonable expectation of both parties. Whilst triggers might be considered as part of reasonable adjustments, if a neurodivergent employee demonstrates unacceptable behaviour or attitudes towards other staff or managers, then this can be dealt with using conduct policies and procedures. However, the employee’s neurodivergence must still be considered when dealing with the issues. If an employer believes that behaviours are a conduct issue and not a disability issue, they may benefit from an updated medical opinion from Occupational Health before pursuing conduct procedures. Common examples of issues include aggressive behaviour and persistent lateness (where alternative start times are not a reasonable adjustment).

Reasonable Adjustment Passport: or a Health Adjustment Passport is a live, portable document which records an employee’s agreed workplace adjustments in relation to their disabilities or long-term health conditions. The aim of a passport is to ensure consistent support, facilitate smooth transitions between roles or managers, and prevent the employee from having to renegotiate support.

Policies: Many employers are looking to specifically refer to neurodiversity and neuroinclusion in their DEI policies to set out their commitment to neuroinclusion and set out the standards expected from staff members and managers. Policies can set out the employer’s legal duty, additional commitments in relation to recruitment, performance or promotion and detail internal and external support services.

Support & advice

Employers can reach out for legal advice and HR support in relation to integrating neuroinclusion in the workplace or assessing reasonable adjustments for neurodivergent employees.

Seeking legal advice at an early stage of a reasonable adjustments process can provide assurance to employers that they have considered all aspects of an employee’s neurodivergence and assist in deciding if proposed adjustments may be reasonable within the context of their business. Ensuring an employer’s confidence in managing reasonable adjustments can reduce the potential of formal disputes arising between employers and employees.