Neurodiversity Celebration Week – guidance for employers and recent case law

Neurodiversity Celebration Week is taking place this year from Monday 16 March.

Neurodiversity refers to how the brain interprets information, influencing how individuals communicate with the world and those around them. This week aims to raise awareness about neurodiversity, through challenging stereotypes and promoting understanding and acceptance. We encourage creating more inclusive and equitable cultures, that celebrate the differences among individuals and empower them. It is estimated around 15-20% of people in the world are neurodivergent, which is approximately 1 in 7 people in the UK.

Neurodiversity includes individuals with autism, ADHD, dyslexia, dyscalculia, dyspraxia, dysgraphia and Tourette syndrome.

Under the Equality Act 2010, being neurodivergent will often amount to a disability. This is defined under the Equality Act as:

‘a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.’

Neurodivergent conditions are recognised as mental or cognitive impairments. This means the condition causes more than a minor or trivial disadvantage, often having substantial effects on the ability to carry out normal day-to-day activities.  Neurodivergent conditions are typically lifelong, meeting the definition of long-term, which is 12 months or more.

How does this impact employment tribunals?

Tribunals are seeing an increase in neurodiversity-related claims, and this is due to a number of factors.

Some workplaces do not have structured policies or trained managers, leading to failures to recognise where adjustments and extra support is required. Without clear policies, small misunderstandings can escalate into grievances and disciplinary matters.

Employees have gained a better understanding of their rights in the workplace. Even if employees have not formally disclosed their condition, and an employer recognises that they are struggling and fail to act on this, the employer could still be penalised. The employer must take proactive steps to put in place reasonable adjustments. Not all employees are likely to disclose if they have a neurodivergent condition, and they should not be put at a disadvantage for doing so. Reasons employees may not disclose is due to stigma and the fear of being discriminated in the workplace.

The Equality Act 2010 puts a legal obligation on employers to make adjustments. We can assist through:

• Creating neuroinclusive policies suitable for your workplace
• Provide training for managers and staff, to raise awareness
• Reasonable adjustments that could be put in place
• Provide training for managers to recognise where additional support is required.

Case law examples

Halstead v JD Wetherspoon: The Employment Tribunal found the respondent failed to make reasonable adjustments for the claimant, who had autism. The respondent applied a “zero tolerance” to a policy, and the failure to make reasonable adjustments amounted to disability discrimination.

Facts of the case

Mr Halstead, the claimant, was investigated for using his employee discount for a family meal with five members in August 2023. The policy only permitted the discount to be used for groups of up to four people. The respondent applied a strict stance, noting they have adopted a zero-tolerance approach and gave no consideration for disability-related factors.

The claimant was subjected to an investigatory and disciplinary process in relation to the use of the discount code and potential breaches of the respondent’s data protection and confidentiality policies.  The claimant asked for his mother to be present throughout the process, in order to help him understand what was happening. The respondent did not make any adjustments to the disciplinary process, noting policy limits companions to colleagues or union representatives.

As a result, the claimant went off sick from work. A meeting regarding his sickness was arranged prior to obtaining the occupational health report, which set out clear adjustments that should be made. Throughout the disciplinary process, the claimant was not provided with any updates, contributing to his anxiety.

In December 2023, the respondent invited the claimant to a “some other substantial reason” hearing to discuss, from their perspective, a breakdown in the employment relationship and the claimant’s failure to attend certain meetings. In this case, a number of reasonable adjustments were offered. The meeting was successful and the claimant returned to work in March 2024 with practical adjustments to support him.

Throughout the grievance process, the claimant had reached out to ACAS for early conciliation. The respondent declined to offer any financial compensation for the prior treatment. The claimant therefore, brought a claim under the Equality Act 2010 for failure to make reasonable adjustments (sections 20 & 21) and disability-related harassment (section 26). The definition of disability under section 6 was met, and the respondent was aware of the disability.

What was the outcome?

The tribunal upheld the respondent’s failure to make reasonable adjustments however, the harassment claim was not upheld.

The tribunal found that the respondent had failed to adjust the process to accommodate the claimant’s needs as an autistic person. By applying their standard processes and not permitting the claimant’s mother to attend the meetings as a reasonable adjustment, they failed to support the claimant. The unfair process put the claimant under undue distress.

Mr Halstead apologised for the error made when applying the discount, noting it would not happen again now he gained full understanding of the policy. The tribunal found once it had been discovered the breach was caused due to the claimant’s autism, the matter should not have followed a disciplinary route but an informal one.

Mr Halstead was awarded £25,412, of which £3,520 was for financial loss, £18,500 for injury to feelings and £3,392 interest.

What does this mean for you as an employer?

This is an important case that highlights the negative impact that failing to make reasonable adjustments can have on a neurodivergent employee’s wellbeing and their ability to participate in standard procedures.

The zero-tolerance approach does not work across the board and adjustments should be made where needed. You must be flexible in your approach as strict adherence to policies and procedures fails to take into account the diverse needs of your employees.

Adjustments should be considered more widely, to ensure neurodivergent employees are not discriminated against, rather placed on an equal footing with their colleagues. Once an employer is made aware of an employee’s disability, a duty to make reasonable adjustments arises. It is important to note that a formal request need not be made by the employee. Practical examples include:

• Longer notice periods for meetings, including investigations, to allow time for the employee to prepare without prejudicing the investigation overall
• Clear communications regarding purpose of meetings, perhaps including a list of questions that will be asked, next steps and potential outcomes
• Flexibility to policies regarding companions to meetings. The standard is usually colleagues or union representatives, but this may not be reasonable in all cases.
• Clear communications of updates in the process, to avoid unnecessary stress or long delays
• Applying adjustments suggested by occupation health reports, within reasonable means
• Clear, written explanations accompanied with training and perhaps individual explanations may be necessary to ensure employees understand the policies in place.

Many neurodiverse employees experience anxiety or stress from unstructured interactions or complicated policies. You can mitigate this through providing adjustments and being flexible in your approach when considering meetings, policies and daily interactions. It is important to ensure staff receive neurodiversity training, to raise awareness and to ensure neurodiverse employees feel seen regarding their needs. Be sure to obtain consent from neurodivergent employees before sharing any information.

Moore v Greene King Retail Services Limited: The tribunal explored the importance of making reasonable adjustments to allow employees to carry out their roles effectively. In this case, the respondent failed to make low-cost adjustments to support a chef with dyslexia struggling to read customer food orders.

Facts of the case

Mr Moore, the claimant, was employed by the respondent as a chef. In the claimant’s interview, he made it known that he was dyslexic, to which the respondent assured would not be a problem and employed him.

During a shift, a manager of the respondent asked the claimant what adjustments can be made to support his reading of customers’ orders. Mr Moore suggested a Bluetooth device to overcome his difficulty of reading the orders.

The claimant was not given any further shifts following this discussion and was also not put on the rota, due to not completing his online training and as a result the claimant raised a grievance. Mr Moore had been referred to occupational health, of which the report identified a wireless headset as a potential adjustment to support Mr Moore in fulfilling his duties.

A couple of further meetings took place to resolve matters; however, they were not successful and the Claimant’s employment was terminated.

What was the outcome?

The tribunal found the respondent had failed to make reasonable adjustments and had terminated the claimant’s employment as a result. Had they implemented the low-cost adjustments, the claimant could have remained in employment and fulfilled his duties to a good standard, as a positive assessment of his work capabilities had been highlighted before.

The claimant was awarded £13,735.89 for injury to feelings and £10,269.74 for financial losses.

What does this mean for you as an employer?

This claim highlights the importance for employers to take proactive steps to understand and accommodate the needs of neurodiverse employees. It is important for not only HR professionals, but for all managers to receive training so they are able to recognise where adjustments are required and how to handle matters appropriately.

By raising awareness of neurodiversity, senior and line managers can support with practical adaptations that can be made. A lack of understanding of neurodiverse conditions is not good enough - failure to make adjustments results in a failure to meet legal obligations.

It is important to note that tribunals will consider the means and resources of employers when it comes to making reasonable adjustments, so you will not be expected to go above and beyond with costs if this is not feasible for your company.