Neurodiversity In The Workplace

The term Neurodiversity is one that many employers may not be too familiar with. However, understanding Neurodiversity is important for employers, not only to ensure compliance with the relevant legal framework but as part of creating a supportive and inclusive work environment.

What is Neurodiversity?

Neurodiversity refers to the various ways in which the brain can work and interpret information. It acknowledges the fact that individuals naturally think about and process information and/or situations in different ways and recognises that every individual has different interests and natural strengths in certain areas.

It is understood that approximately one in seven people are Neurodivergent and diagnoses in adults continue to increase. Employers, therefore, need to be alive to the concept of Neurodiversity and how this may present in individuals, and be open to accommodating Neurodivergent employees.

Generally speakingthose who identify as Neurodivergent may have one or more of the conditions specified below:

  • ASD (including the condition that was previously referred to as Asperger’s syndrome)
  • Attention-deficit hyperactivity disorder (ADHD)
  • Down syndrome
  • Dyscalculia
  • Dysgraphia
  • Dyslexia
  • Dyspraxia
  • Mental health conditions – for example, bipolar and obsessive-compulsive disorder
  • Prader-Willi syndrome
  • Sensory processing conditions
  • Social anxiety
  • Tourette syndrome

Nonetheless, it is important to note that this is very much a non-exhaustive list and it is entirely possible that many other conditions could also be considered as falling within the scope of the term ‘Neurodivergent’.

Neurodiversity in the workplace

Neurodiverse individuals often have valuable and beneficial skills to offer in the workplace. For example, they typically display high attention to detail, passion, and creativity and have excellent memories. However, in many circumstances, those with Neurodivergent conditions often find it difficult to find work or find that they are an afterthought when it comes to retention, promotion, and career development. In fact, Government data has shown that only 22% of autistic adults were working in 2021 and, according to surveys by the National Autistic Society, nearly half of autistic workers have stated that they have felt bullied or harassed at work because of their condition.

Research from the Chartered Institute of Personnel and Development and the Neuroinclusion training provider, Uptimize, discovered that:

  • 31% of Neurodivergent employees had not confided to their manager or HR regarding their Neurodivergence, as 37% said they were concerned about people making assumptions about them based on stereotypes.
  • 34% said they felt there was too much “stigma” attached to Neurodiversity and some were concerned that it might have a negative impact on their career.
  • 18% said how they felt their organisation would not be understanding to provide support.

Many employers (60%) have expressed to researchers that Neuroinclusion was a focus for their company. However, 32% of employers have said that Neuroiclusion was not a priority for them.

Whilst Neurodiversity is quite often ‘hidden’ (i.e. it is not physically or visibly apparent), it is possible that this may amount to a disability under the Equality Act 2010 (EqA) if the condition has a long-term and substantial adverse effect on the employee’s ability to carry out normal day-to-day activities. Where this threshold is met, an employee suffering from that condition will receive protection under the EqA against unlawful discrimination, harassment, and/or victimisation on the basis of their Neurodiversity.

The EqA also places an onus on employers to explore and implement reasonable adjustments for that employee where their condition puts them at a substantial disadvantage in relation to a relevant matter. What is ‘reasonable’ will differ from individual to individual, and should be discussed with the individual in question with professional medical input where required (for example, from an employee’s GP or Occupational Health). In this regard, employers should be mindful of the fact that the effects of such conditions vary from individual to individual and may also vary over time, so it is important to maintain an open dialogue with the employee in question and keep any reasonable adjustments under review.

Additionally, employers are under a legal duty to ensure, so far as reasonably practicable, the health, safety, and welfare of employees whilst at work and risk criminal liability if they fail to do so. Adjustments to physical work environments may be required in the case of Neurodivergent employees in order to comply with this duty. For example, to remove or reduce sensory stimuli.

The CIPD has issued guidance with suggested adjustments that might be considered but, as above, this should be considered on a case-by-case basis following discussions with the employee.

What can employers do to support Neurodiversity?

Notwithstanding that not all Neurodivergent employees will have a disability in the eyes of the law, it would be prudent for employers to adopt inclusive policies and consider reasonable adjustments in every case of Neurodivergence to demonstrate commitment to having a diverse, inclusive, and supported workforce.

Neurodiversity can pose difficulties right from the outset of the employment life cycle. Employers should bear in mind that those who are Neurodivergent can experience issues even at the recruitment stage and consider making appropriate adjustments. For example, keeping advertisements simple, giving advance notice of any exercises an applicant may need to complete as part of the interview process, and adjusting the physical environment in which interviews take place to make this accessible and allow breaks where appropriate.

When employed, employers should encourage open communication with employees who may feel they are Neurodivergent and are struggling in work as a result and actively listen to any concerns that are raised. Internal policies should encourage employees to disclose to their line manager or HR if they are experiencing issues at work because of any such condition and direct them to appropriate internal resources and any designated people within the business for support. Employers should be mindful of the language used in policies and avoid any terms that may be viewed as disparaging and/or not suitable in the context of equality, diversity, and inclusion.

As above, communication is key and where an employer feels or is made aware of the fact an employee is struggling, they should take steps to explore possible reasonable adjustments that may assist the employee, such as dictation software, being allowed to use headphones, a separate working space or altering working hours. This in turn can encourage greater productivity and lead to the retention of talented employees, benefitting both the individual and the business.

In order to have those sometimes difficult and sensitive conversations, employers should provide line managers with adequate training on difficulties Neurodivergent employees may face at work and how to identify and best support Neurodiversity.

Employment Tribunal claims

Whilst disability discrimination claims on the basis of Neurodivergent conditions are still fairly rare, there has been a significant increase in the last few years. A 2022 study revealed that in 2021 there were:

  • A 40% rise in Tribunal claims relating to autism;
  • An increase of 31% in Asperger’s cases; and
  • A 14% rise in dyslexia claims coming through the Courts.

In a bid to minimise the risk of facing such claims, employers need to embrace Neurodiversity in the workplace and understand the laws and protections afforded to Neurodivergent employees.

How Nelsons can help

If you require advice regarding neurodiversity in the workplace or assistance with preparing appropriate policies, please do get in touch with a member of our Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.

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