Legal

Managing neurodiverse workers remotely

14 Aug 2020 By Amanda Beaumont

Amid the rise of long-term home working, Amanda Beaumont outlines how employers can make sure they are still meeting the needs of neurodivergent employees

With one in seven of the UK population believed to have some sort of neurodivergence such as autism, Asperger’s syndrome or attention deficit hyperactivity disorder (ADHD), there are some important considerations for employers, which have been brought into even sharper focus since the pandemic. 

With employers now generally having a greater awareness of neurodivergent conditions, many organisations are actively recruiting from this pool of potential employees. Businesses are recognising the benefits of ‘diversity of thought’ by actively hiring people with different perspectives, backgrounds and experiences who, in conjunction with colleagues, can drive more rounded and creative insights to drive a business forward. 

Yet neurodivergent individuals may struggle in some workplace settings, and in an environment where human contact has been replaced with virtual contact, it is incumbent on employers to ensure neurodivergent employees’ needs are still being met. 

The law

An individual’s neurodivergence may be classed as a disability under the Equality Act 2010 in which case greater responsibilities and considerations arise for the employer, including the duty to make reasonable adjustments. 

Clearly, everyone is an individual – whether neurodivergent or not – and that needs to be the starting point. However, there are some important points to remember: 

Ignorance is no defence

Disability discrimination legislation generally applies where an employer knew or ought reasonably to have known about an individual’s disability. Therefore, if an employee doesn’t specifically disclose details of their neurodivergence (and there is no obligation on them to do so), that doesn’t give an employer carte blanche to ignore any clear and obvious signs. Aside from creating a working environment which is more difficult and more unpleasant for some employees to navigate and which fails to get the best out of certain members of the workforce, there are real risks to not acting inclusively. 

Discrimination rights do not require a specific period of continuous service. Therefore, if an employer treats a neurodivergent employee (who meets the Equality Act 2010 definition of disabled) unfavourably for a reason connected with their disability, and that action cannot be justified, they will face claims for disability discrimination and potentially unfair dismissal, irrespective of how long the employee has been employed. Unlike ordinary unfair dismissal compensation, discrimination compensation is uncapped and includes payment for injury to feelings.

Reasonable adjustments can make all the difference

While an employer may have considered and made reasonable adjustments to the workplace to assist their neurodivergent workforce (for example, providing specialist equipment or taking measures to reduce noise levels), they may not have considered what their needs are during home working and importantly, how they are feeling about the possible return to the workplace. The first and possibly obvious step is to talk to them about this. It is only going to be through dialogue that an employer can truly assess where its employees need support. 

Communicate using the right medium 

It has become common practice now for meetings to take place via video call. This becomes all the more challenging with large numbers of attendees, all wanting to be heard, often at the same time. These challenges may be further heightened for some neurodivergent employees. Consideration should therefore be given to whether a different approach would be welcome and more appropriate or whether a conversation with the attendees ahead of time, setting out expectations and etiquette – essentially setting the ground rules for the meeting – would be enough to allay any fears and anxieties. 

One size does not fit all.

Whilst there are traits we may associate with the various neurodivergent conditions, no one should assume that because they know and understand the needs of one neurodivergent employee, they know and understand the needs of all neurodivergent employees. This is not a scenario where one size will fit all. 

Amanda Beaumont is an employment partner at Kennedys

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