‘Life changing.’ That’s how TV presenter Melanie Sykes described her late diagnosis of autism spectrum disorder (‘ASD’) at age 51. Examples of late diagnoses of ASD, particularly for women, are far from isolated. A less publicised problem is that of missed diagnoses: an entire generation in late adulthood without a diagnosis and/or awareness that they may be autistic.

The challenges those with ASD face obtaining and staying in work are particularly stark. According to recent data from the Office of National Statistics (‘ONS’), only 22 per cent of autistic adults are in any form of work at all. That is despite survey data from Autism.org which suggests that the majority want to work. As neurodiversity becomes a more mainstream concern for today’s employers, the experience of Ms Sykes and others in a similar position highlights the importance of adequately supporting all staff and making workplaces genuinely inclusive.

This post provides introduces key employment law issues raised by neurodiversity. It should interest managers and human resources professionals who want to understand the subject better and enable staff to flourish. It is also relevant to service providers, public bodies and affected individuals or groups.

What is neurodiversity?

‘Neurodiversity’ is a broad term that originated in the late 1990s, attributed to the sociologist, Judy Singer. In the terminology, individuals are ‘neurotypical’ or ‘neurodivergent’. The latter category covers a wide range of different conditions, such as dyslexia, ASD, Asperger syndrome, dyspraxia, dyscalculia, attention deficit hyperactivity disorder (‘ADHD’) and sensory processing disorders. Simply put, these neurological conditions affect how neurodivergent individuals process information and learn. Someone may have one or more neurodivergent conditions, and each condition may manifest in different ways (hence references to being on a spectrum). The interaction between multiple conditions and their symptoms can create unique and complex neurological profiles. Some conditions may result in strengths, (for example, a person with ADHD might at times become hyperfocused and/or filled with high levels of energy) as well as difficulties.

‘Disability’ is defined by section 6 of the Equality Act 2010 (‘EqA 2010’), read with Schedule 1, as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. An impairment is considered ‘substantial‘ if its effects are more than minor or trivial and ‘long-term‘ if it has lasted or is likely to last for 12 months or more.

A neurodiverse individual may have a ‘disability‘, as defined. Alternatively, their condition/s might not meet the statutory definition of a disability, even though the condition/s result in difficulties or impairments.

Whether or not neurodivergent staff are likely to be protected by the EqA 2010, employers should take a precautious approach when identifying and considering their requirements and how to support them appropriately. With the consent of the individual, the opinion of occupational health professionals should be obtained by the employer. Bear in mind however that occupational health providers (and practitioners) will vary in their level of autism awareness. An employer should check how familiar the professionals are with the condition. Ultimately, whether an individual’s condition/s meet the definition of disability is a question for Employment Tribunals to determine, where necessary. If in doubt, employers should err on the side of caution and treat an affected individual as being covered by the EqA 2010.

Supporting neurodiversity at work

In order to support neurodiverse individuals in the workplace adequately, an employer needs to create a working environment that is respecful flexible and a culture that celebrates and champions neurological differences. In practice, that tends to be fostered in workplaces with widespread, up-to-date training and awareness on neurodiversity and other ‘hidden‘ disabilities. By creating a positive culture around differences and disability, an employer is likely to be in much a better position to assess the extent to which its staff are (or may be) affected by neurodiversity issues and, hopefully, to reduce avoidable disputes. Cultural change can be complemented by detailed workplace audits and surveys which gather relevant data on equality and diversity matters and disability in particular. Public sector organisations also have broader monitoring duties imposed on them by section 149 of the EqA 2010, which must be adhered to.

Photo by Enric Cruz López from Pexels

Identifying needs

There are several prohibitions and duties contained in the EqA 2010 that only arise where the employer knows or should have known about the individual’s disability. [1] The Equality and Human Rights Commission’s (‘EHRC’) statutory code of practice on employment (at section 5.15) requires that ‘An employer must do all they can reasonably be expected to do to find out if a worker has a disability‘, all the while balancing its enquiries with the need for dignity, privacy and confidentiality.

To avoid uncertainty, employers should ensure their recruitment and on-boarding procedures give reasonable opportunities for neurodivergent individuals to identify their needs or requirements (bearing in mind that not all may be comfortable disclosing information at various stages of the employment relationship). The better the culture around disability, the more likely it may be that individuals will feel comfortable with full and early disclosure. One way of achieving this is to encourage applicants, recruits and existing staff members to share the best ways of supporting their talents, needs and abilities. Employers can also review their policies (on training, progression, equality, disciplinary and grievance matters for example) to ensure that neurodiversity is adequately accounted for.

A neurodivergent individual may have a clinical diagnosis (or diagnoses). However, as Ms Sykes’ case demonstrates, an undiagnosed neurological condition can have a significant impact even if it is ‘masked‘ or moderated by coping mechanisms. An undiagnosed condition may amount to a ‘disability‘ under the EqA 2010 and an employer that is aware of the symptoms of an undiagnosed condition is expected to make reasonable enquiries as to whether a person may have a disability [2]. An employer that fails to make enquiries so may be found to have constructive knowledge of the underlying disability.

Employers should adopt a flexible approach when it comes to medical evidence and diagnoses. Neither are required by the EqA 2010, but they may provide useful guidance. Where an employer is obtaining evidence from external parties, momentum can be lost due to the procedures being dispersed across line managment, H.R., occupational health and GP practices or other medical professionals. A coordinated approach which enables all parties to work together in a timely way may achieve better outcomes and ensure that the evidence of an individual’s needs are properly understood.

A further layer of complexity may arise where a person is simultaneously disadvantaged on the basis of several protected characteristics, (ie. disability, sex and/or race). In those scenarios, employers may benefit from professional advice to ensure that line managment is suitably equipped to identify the issues, understand the individual’s perspective and consider their support requirements. For further insights into the issues, I recommend Tumi Sotire (@theblackdyspraxic) and a helpful Forbes article on his work here.

Making ‘reasonable adjustments

Employers are under a duty to make reasonable adjustments where an apparently neutral measure (in the language of the 2010 Act a ‘provision, criterion or practice‘ or ‘PCP‘) puts a disabled person at a substantial disadvantage ‘in relation to a relevant matter‘ when compared with non-disabled persons. Where this occurs, employers must take reasonable steps to avoid the disadvantage.

RELATED: Court of Appeal clarifies what acts are covered by disability discrimination claims

The duty is ‘anticipatory‘ [2]. It’s not enough for an employer to wait until a disabled person joins the workplace before considering what adjustments disabled persons may require and whether or not they are reasonable. An employer should proactively identify and consider the barriers that neurodiverse individuals face (or could face) in their organisation and consider how such barriers may be avoided.

Those employers who are the most accommodating are usually the most innovative. They make an active effort to reach out, enquire, listen, and seek guidance. In their organisation, they combat misconceptions and take neurodiversity into account at ALL levels of employment.

Amelia Platton, first class law graduate and founder of the Neurodiverse Lawyer project

This can mean changing the way that things are normally done (or expected to operate) to accomodate an individual’s disability. The process of requesting adjustments and having them considered and discussed at length by managment and/or H.R. may in itself seem daunting for the individual staff member. Designing an efficient, neurodivergent-friendly process may help to lay the foundations for a successful outcome.

Due to the variety of neurodiverse conditions and individuals, there is no ‘one-size-fits-all‘ solution and stereotypical assumptions about a person’s disability or needs could themselves amount to direct disability discrimination or harassment. However, some of the more frequently encountered adjustments may relate to:

  • scheduling breaks;
  • how instructions and information are communicated;
  • additional time to complete certain tasks;
  • seating and office plan arrangements;
  • technological assistance;
  • changes to lighting;
  • noise or other sensory factors;
  • the provision of information in an accessible format in advance of meetings; and
  • being allowed to be accompanied to informal meetings as an adjustment to standard policies or procedures.

This isn’t an exhaustive checklist. It’s important for employers to take a person-specific approach and avoid making assumptions about what kind of adjustments are required as this is likely to depend on the individual’s unique profile, needs and views.

Dr Gemma Williams, an autistic research fellow at the University of Brighton, explains that:

For autistic and otherwise neurodivergent individuals, whether certain characteristics are disabling or not is often context-sensitive. If you can get the environment right, autistic people can thrive. The changes and adjustments autistic people need will often benefit everyone in the workforce. Think about the sensory environment, and ask employees what they need.

Dr Gemma Williams, autistic researcher

All discussions about adjustments should be appropriately recorded and shared with the staff member to ensure accuracy and transparency in the decision-making process. This will help employers to maintain an up-to-date, clear and accurate record of such discussions in the event that the parties disagree, for example, on what is required or whether certain adjustments are ‘reasonable‘. Whetever an employer decides, clear and detailed reasons should be provided.

Where recommendations are made by occupational health providers, they should be followed, unless there are compelling justifications for not following them.

Avoiding disability discrimination

There are several different types of disability discrimination that are prohibited in employment. Particularly relevant to neurodiversity (and closely related to reasonable adjustments) is the prohibition on discrimination because of ‘something arising‘ from a disability. Section 15 of the EqA 2010 provides that a person (‘A’) discriminates against a disabled person (‘B’) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is justified.

Section 15 extends the legal protection of persons with disabilities to prohibit unfavourable treatment because of ‘things‘ connected with a person’s disability. For example, a person with a mobility impairment and who uses a wheelchair would be protected from unfavourable treatment because of their wheelchair use. There can be more than one link in the chain of causation between the disability and the ‘thing/s arising‘. However, the more links in the chain, the less likely it is that a causal connection will be established.

To illustrate this, a person with ASD may experience:

  • fatigue due to sensory overload;
  • distress because of unexpected changes to routine;
  • anxiety from emotional dysregulation;
  • social and mental health difficulties because of how they communicate and relate to others.

Absences from work might result from any or all of the above. These consequential ‘things arising‘ from ASD must not form the basis for any unfavourable treatment by an employer, such as disciplinary sanctions, performance monitoring or absence managment procedures, unless the treatment can be justified as a proportionate means of meeting a legitimate aim.

Photo by Markus Spiske from Pexels

All this emphasises the need for employers to know the needs of their staff well and to get familiar early on (like yesterday) with the particular difficulties that neurodivergent individuals may experience, to ensure that they are not unjustifiably subject to a detriment for anything connected to an actual or potential disability.

The legal sector has particular problems around disability discrimination. Blogger and aspiring lawyer, Amelia Platton, who has dyspraxia, told me she had experienced:

Tokenism, a lack of representation, a lack of disability reporting, discrimination, prejudice, and a lack of long-term planning. The most disappointing experiences are often provided by firms that profess to be excellent diverse employment while continually excluding neurodivergent individuals.

Summary

This is a potentially area which calls for empathy, foresight, proactive consideration and collaboration. The EqA 2010 demand no less of employers, public bodies and service providers. Many organisations may benefit from reviewing their policies and procedures from a neurodiversity perspective and from listening to the experiences of neurodiverse colleagues, to aid understanding of what it means to properly understand how affected individuals experience the world, what holds them back and what allows them to flourish.

Many firms’ disability Equality, Diversity and Inclusion (‘EDI’) policies, in my opinion, are rudimentary. As a result, for many firms, merely engaging with neurodivergent people would help them better understand our concerns and difficulties, alongside challenging damaging stereotypes. You should be having frequent open dialogues; it’s far past the point when this should be a problem. Neurodiversity does not have to be a frightening concept.

Amelia Platton, the Neurodiverse Lawyer

Getting this right has the dual advantages of (i) creating an increasingly diverse and inclusive organisations that draw on wider pools of talent and (ii) empowering current and future staff to participate and progress fully in their careers. As Catherine Bean, a researcher at the Office of National Statistics put it:

Neurodiversity is an important and often overlooked aspect to diversity at work; but we bring huge strengths to our organisations, and there’s a lot that can be done to be more inclusive of our needs. 

Neurodiversity in the workplace, gov.uk blog (7 April 2021)

Further resources

In the legal sector, see the following projects / resources:

NOTES:

[1] Actual or constructive knowledge is a requirement in claims for (i) direct disability discrimination (section 13 of the EqA 2010), (ii) discrimination because of something arising in consequence of a disability (section 15) and (iii) a breach of the duty ot make reasonable adjustments (section 20).

[2] See the EHRC code of practice on employment (at section 6.19).

[3] See VC v SSHD [2018] EWCA Civ 57 at § 157 per Beatson LJ, citing Lord Dyson MR, as he was, in Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191 at § 32.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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