Neurodiversity in the workplace - employment law webinar

Summary transcript

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My name is Katherine Cooke, and I am a Senior Associate in the employment law team. Thank you so much for joining today. We are going to be diving into an introduction to Neurodiversity at Work. This session coincides with Neurodiversity Celebration Week, so we thought it would be a great opportunity to rerun a talk I originally delivered at the end of last year.

Neurodiversity continues to be a growing topic. It comes up frequently in my day-to-day practice and that of my colleagues, and it is certainly an issue Employment Tribunals are seeing more of. We are supporting our clients to become educated on both the positives and the risks attached to having neurodivergent employees, and how best to support them at work.

This is a massive topic, so today will be a whistle-stop tour. If anyone is interested in further training for their managers, a detailed look at case law, practical exercises, and more in-depth knowledge about the different types of conditions and practical issues, let me know. I have a longer version of this talk that can be delivered to management teams.

The prevalence and impact of neurodiversity

It is estimated that about one in seven people in the UK is neurodivergent (Donaldson Trust, 2024). Having a neurodiverse employee can be hugely positive. Some clients find that employees who are autistic, for example, follow instructions to the absolute letter and do a thorough job. However, it can also be a cause of conflict, especially if someone is very wedded to a process and struggles with flexibility, which can create challenges in the workplace.

There are also tricky scenarios. Some employees may have been diagnosed early, received support at school, and have a good understanding of their condition. Others may receive a diagnosis later in life. This is something we are seeing more of (especially with ADHD). Likewise, employees may realise they are neurodivergent after their child is diagnosed. Sometimes, there are people you might suspect are neurodiverse but do not have a formal diagnosis.

Objectives for today's webinar on neurodiversity in the workplace

Today, I hope you will come away with a better understanding of the meaning of neurodiversity and the legal position and risks associated with managing these issues in the workplace.

What is neurodiversity?

Neurodiversity is an umbrella term for a range of neurological conditions. These include:

Autism Spectrum Disorder (ASD)

A neurological and developmental disorder affecting how people interact, communicate, learn, and behave. Symptoms vary widely and can include sensory seeking or sensory avoidance. Office environments with noise, light, or fluctuating temperatures can be challenging. Autism can also be linked to other conditions such as epilepsy, gastrointestinal problems, and sleep disorders. Burnout and chronic exhaustion are risks, usually caused by extensive masking (suppressing ASD traits to fit in).

ADHD

ADHD is characterised by ongoing patterns of inattention and/or hyperactivity-impulsivity that interferes with executive functioning or development. People with ADHD may find it hard to follow instructions, concentrate, or complete tasks. They may be easily distracted but can also experience periods of intense hyperfocus. Difficulties can include organising tasks, sequencing tasks, managing time, and keeping track of belongings.

Dyslexia

A learning difficulty primarily affecting skills involved in accurate and fluent word reading and spelling. It can also affect sound interpretation, language, verbal memory, processing speed, and short-term memory. Dyslexia is often misunderstood as simply bad spelling, but it is much more than that and can co-occur with other conditions. There are strengths of this condition, such as creative thinking and seeing the world differently.

Dyscalculia

A specific and persistent difficulty in understanding numbers, which can make quantifying and reading numbers challenging.

Dyspraxia

Affects fine and gross motor coordination and can co-occur with other neurodiverse conditions.

Dysgraphia

Where writing level is not at the age or developmental stage it should be. Affects writing skills, making it difficult to translate thoughts into written words, often due to poor fine motor skills.

Tourette’s Syndrome

Often stereotyped as tics involving swearing, but most people experience a range of motor or vocal tics. It is a wide spectrum of symptoms and behaviours.

Individual differences

It is important to remember that even if you have personal or professional experience of one or more of these conditions, each individual may present very differently. Avoid stereotyping or making assumptions.

The legal framework

None of these conditions automatically meet the legal definition of disability. Under the Equality Act, a disability is a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Most neurodiverse conditions are permanent, incurable and managed over a lifetime, so many people will meet this element of the definition.

The adverse effect on day to day activities can include the impact of medication to treat the condition, or the need to avoid certain situations, such as over stimulating work events. With or without a firm diagnosis, a potential Claimant would need to meet all the elements of the definition to bring an Employment Tribunal claim for disability discrimination. If someone meets the definition, they are protected from:

Types of Discrimination

• Direct discrimination: Less favourable treatment because of disability (e.g. only hiring candidates who are not neurodiverse).
• Indirect discrimination: Applying a provision, criterion, or practice that disproportionately affects neurodiverse people (e.g. mandatory networking for all staff).
• Harassment: Unwanted conduct which has the purpose or effect of creating a hostile or intimidating environment (e.g. name-calling, exclusion, undermining, jokes).
• Victimisation: Subjecting someone to a detriment because they have made or supported a complaint about discrimination.
• Failure to make reasonable adjustments: Employers have a duty to make reasonable adjustments to support neurodivergent employees (e.g. adapting interview processes for someone with dyslexia).
• Discrimination arising from disability: Penalising someone for something arising from their disability (e.g. absence management sanctions imposed due to ADHD medication side effects).

Supporting Neurodivergent Employees at Work

If possible, obtain a medical report or statement from the employee (with their consent) to understand their condition and how it manifests for them. Consider:

• What difficulties might arise at work?
• How can you work around these challenges?

Always seek consent before requesting a medical report, and ask questions about the specific impact of the condition on the employee’s work.

Practical strategies for employers

• Awareness and training: Ensure managers and staff are trained to understand neurodiversity and the strengths and challenges it can bring.
• Open communication: Create an environment where employees feel comfortable disclosing neurodivergence and discussing their needs.
• Reasonable adjustments: These may include flexible working hours, changes to the physical environment, adapting communication styles, or providing assistive technology.
• Recruitment practices: Review recruitment processes to ensure they are inclusive, such as offering alternatives to written tests or allowing extra time.
• Ongoing support: Regular check-ins and a willingness to adapt as needs change are vital.

Conclusion

Neurodiversity is a broad and complex area, but with understanding and the right support, both employers and employees can benefit enormously. If you would like more in-depth training or advice tailored to your organisation, please get in touch.