The term ‘neurodiversity’ became more widely understood following the introduction of the Acas Code of Practice in March 2019, which highlights why employers should support neurodiversity in the workplace. The code states that businesses might be obliged to treat certain types of neurodiversity as a ‘disability’ under the Equality Act 2010 and make reasonable adjustments to remove or minimise any disadvantage neurodiversity places individuals at.
The code sets out steps for managers to take in response to neurodiversity. To identify specific actions that should be taken for each individual, an assessment must be made about how neurodiversity affects them in particular. Experts may need to be consulted if employers are unsure what adjustments to make.
Neurodiversity is not always considered a disability by neurodivergent individuals; a good description is simply ‘thinking differently’. Neurodiversity is an umbrella term for a set of differing skills profiles, including autism/Asperger’s syndrome, dyslexia, dyspraxia and attention deficit hyperactivity disorder. These profiles will often overlap.
While not all neurodiverse employees will display the same skills profile, there are common themes. A neurodiverse worker will often have distinct peaks in their skillset and distinct dips, whereas a non-neurodiverse employee’s skills profile will be less varied. Employers that make adjustments to ameliorate the impact the dips can have on the employee will reap the benefit of the peaks in their skills profile.
Experts estimate that, on average, 15 per cent of any workforce will be neurodiverse, 10 per cent of the UK population is dyslexic, 1 per cent is autistic and 5 per cent is dyspraxic. It is therefore not a matter employers can ignore.
Businesses owe an obligation not to discriminate against candidates in the recruitment process and to make reasonable adjustments if a candidate’s neurodiversity would otherwise place them at a disadvantage at interview.
This was illustrated in Government Legal Services v Brookes. Ms Brookes applied for a trainee solicitor contract with the GLS in 2015. She is autistic. Part of the recruitment process required candidates to answer a multiple-choice questionnaire. The ‘absolute’ nature of this type of questioning can be a barrier to certain autistic people, and so Brookes asked as an alternative to provide short narrative answers. The GLS rejected the request on the basis that there was no alternative format for the test, but offered her additional time instead.
Having disclosed that she was autistic and explained the barrier posed by the way in which the answers were required, Brookes was put at a disadvantage compared to candidates without autism. The GLS did not properly consider her request; the adjustment it was prepared to make did not alleviate the impact of her condition. Brookes had provided a less discriminatory way of meeting the GLS’s objective of testing the candidates and, as a result of its failure, GLS was found to have indirectly discriminated against Brookes and failed to have made a reasonable adjustment.
A common problem with disability discrimination cases for businesses is knowledge of the disability. Employers’ obligations will apply even if they do not actually know the individual has a particular disability; employees may not have disclosed the condition or may not even know they have it. However, the employer may have constructive knowledge of an individual’s disability from other information available to it. Employees may also get a diagnosis during their employment, which can create obligations for the employer they might not previously have considered. Either way, where employers ignore either notification of a diagnosis or advice put before them, this could lead to unlawful disability discrimination.
In Everitt v Regal Consultancy, Mr Everitt worked for a company supplying staff to Subway restaurants. The branch where he worked failed a hygiene inspection and he was called to a disciplinary, as was another colleague. Several years earlier, Everitt had notified his manager that he had high-functioning autism. At his disciplinary, Everitt asked to be accompanied by a family member who would understand his condition and be able to assist with the particular communication issues his skills profile had. The employer rejected the request as it was outside the norm. Everitt attended without a companion and was dismissed for his behaviour during the disciplinary, rather than the disciplinary issue itself for which his colleague received only a warning.
The tribunal held that he had been discriminated against because of his disability; the rejection of an alternative companion was a failure to make a reasonable adjustment, and the dismissal for his behaviour in the disciplinary constituted less favourable treatment because of something arising in consequence of his disability.
It is apparent from these cases that businesses cannot apply a ‘one size fits all’ approach to responding to the needs of neurodiverse employees, and that understanding their needs in the first place is important. There is much to gain from a neurodiverse workforce given the high levels of focus or energy, depending on the neurodiversity, such employees can bring.
Emma Bartlett is a partner at Charles Russell Speechlys