Tribunals alleging neurodiversity discrimination top 100 in a year – what can HR do about it?

‘There is more at stake than reducing claims’, experts say, urging employers to put more resources into getting the best out of everyone

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Employment tribunals heard 102 cases last year in which employees said that their neurodiversity was part of the reason for the discrimination they experienced, research has shown.

According to the data from employment law firm Fox & Partners, tribunals cited include 30 mentioning dyslexia, 25 autism, 19 ADHD, 14 dyspraxia and 14 Asperger’s.

Neurodiversity describes the differing ways that people’s brains process information.

According to Fox & Partners, workplace disputes can arise when neurodivergent employees feel that their performance or behaviour in the workplace is being unfairly rated for reasons that are related to their condition.

Ivor Adair, partner at Fox & Partners, said: “Whereas many employers have become more aware of neurodiversity within their workforce, that is not yet translating into strategies that are working, as disputes of this type are still making their way to employment tribunals.

“Employers should be allocating resources to drive forward a more sophisticated diversity and inclusion strategy, to include neurodiversity.”

He added: “Employers increasingly appreciate that diversity of thought leads to improved decision making and helps them compete more effectively. Retention and progression of neurodiverse individuals has a part to play in good risk management.”

What can be done?

Experts say that the need for tribunals will only be reduced by businesses taking “proactive steps”.

Chloe Pereira, legal director of people services at Outset Ltd, said: “Employers need to do more than pay lip service by simply putting a policy in place: they must take proactive steps if they want to minimise the risk of discrimination claims.

“This includes raising awareness among employees about different neurodiverse conditions, providing regular training to promote understanding and empathy, and implementing tailored accommodations to meet individual needs.”

Deborah Leveroy, head of consultancy and research at Neurobox, said line managers are not always given enough support and training to oversee neurodivergent employees.

“So, what happens is, if an employee is underperforming, it becomes a capability issue, instead of considering if the employee is dyslexic and needs adjustments, she said.

“Or if an employee requests an adjustment, but does not have a formal diagnosis, the request is denied by the organisation because they believe evidence is required.”

Leveroy suggested training for line managers must be set out in a specific policy, addressing the principles and processes of supporting disabled and neurodivergent candidates and employees.

She added: “A lack of clear policy means that organisations end up in unnecessary and expensive tribunals.”

Ranjit Dhindsa, head of employment at Fieldfisher, agreed: “The managers themselves should have training or access to information on how to work with different people who may be neurodiverse in a number of different ways.

“Neurodiversity is such a broad concept and we cannot treat people the same way – one must have the ability to adapt to each person's needs, in the same way we adapt to neurotypical people who are also diverse and different.”

Andrew Willis, associate director of legal at Croner, said: “Managers should be trained on unconscious bias and neurodiversity to ensure that discriminatory decisions are not based on body language or communication stereotypes.

“Creating an inclusive environment where neurodiverse employees feel supported and encouraged to speak with their manager is also important.”

What else can HR do?

Pereira said: “Sometimes managers and peers exhibit frustration with the needs and behaviours of neurodiverse colleagues – the role of HR in facilitating education, support and fostering understanding is crucial.

“Often it’s a case of getting each party to understand the other properly, which helps remove that frustration and promote better working relationships.”

Willis urged businesses and HR teams to “review every stage”, from recruitment onwards.

“Some professional environments can pose problems for those with neurodiversity so HR should review every stage in the employment life cycle to make sure that internal practices and procedures do not discriminate against any individual because of their neurodiversity, he said.

“At the recruitment stage HR should consider their application process and be mindful that neurodivergent employees may require adjustments such as submitting written answers to specific questions instead of answering multiple-choice questions.”

He added: “Discussions can then take place about whether any workplace adaptations could assist the employee. This might include having a quiet desk away from busy doors or walkways and ensuring that clarity is given over tasks and deadlines.”

Dhindsa said: “It's about ensuring that neurodiverse individuals feel able to tell the employer what they need to carry out their work in a productive way.

“If they ask for particular technology or equipment, HR should then liaise with different departments to get that to them as quickly as possible.

“An action plan should be put in place that is communicated to the rest of the workforce (depending on the individual's consent) or at the very least their manager.”

Read the CIPD's guide to supporting neurodiversity at work here