Legal

The legalities of workplace neurodiversity

21 Oct 2019 By Rebecca Harding-Hill

Rebecca Harding-Hill explains why employers need to be aware of the importance of recognising and supporting neurodivergent staff

Neurodiversity refers to the different ways in which the brain functions, learns and interprets information. While most people are ‘neurotypical’, as their brain functions and processes information in the way society expects, an estimated one in seven people in the UK are neurodivergent. This includes autism, Asperger syndrome, attention deficit disorders, dyslexia and dyspraxia.  

Each form of neurodivergence is associated with different characteristics, which are usually experienced along a ‘spectrum’. The effect of a particular form of neurodivergence can differ from one person to the next and can also change over time. It is important not to make assumptions or apply stereotypes about neurodivergent individuals.

There is a growing movement calling for employers to make workplaces more accessible for the neurodivergent. The movement aims to increase employers’ awareness of neurodivergence and encourage better support for neurodivergent staff. 

What does this mean for employers?

Making workplaces more understanding and supportive of neurodivergence can be hugely beneficial for employers and employees. As well as highlighting the employer’s commitment to diversity, fostering an inclusive workplace can help reduce harmful perceptions and stigma, broaden the talent pool from which the organisation can recruit, and help ensure managers treat staff fairly. 

Creating the right culture will also empower staff and applicants to disclose a neurodivergence. This is an important practical issue, as open and early discussion will assist the employer in making adjustments to its workplace to accommodate the needs of the individual. Further, if employees feel safe to disclose their neurodivergence, they will be more likely to ask for the support they need, which in turn should help avoid performance and engagement issues.

Businesses also need to be aware that they may have relevant legal obligations to comply with. Each form of neurodivergence could potentially amount to a disability under the Equality Act 2010. Employers could therefore have a legal obligation to make reasonable adjustments to the workplace and the individual's role that will remove or minimise any disadvantage to them. They will also need to ensure the individual is not subjected to direct or indirect discrimination or harassment in relation to their neurodiversity. 

This can present a particular issue in relation to the recruitment process, as highlighted by the case of The Government Legal Service v Brookes, in which an applicant with Asperger’s successfully sued the Government Legal Service for discrimination after she applied for a training contract but was unable to pass a psychometric test. In upholding her claim, the tribunal found it was unreasonable for the employer to refuse the applicant’s requested adjustment to allow her to submit short written answers rather than sit a multiple choice test. 

To guard against the risk of discrimination claims, businesses should consider whether recruitment processes could unfairly disadvantage or exclude neurodivergent applicants. Psychometric testing in particular can present issues here, so its use ought to be carefully considered. Employers that subject applicants to such testing should discuss with them whether adjustments could be required. This could include, for example, allowing extra time or adjusting the testing method. While obtaining a medical opinion on the efficacy of a potential adjustment could be helpful, such evidence may be inconclusive and it may be beneficial to take a more open-minded approach.

Fostering an understanding workplace culture that proactively considers the needs of neurodivergent employees can make it easier to identify and implement adjustments. Not only should this help staff reach their full potential, it can also help employers avoid legal pitfalls.

Rebecca Harding-Hill is a partner in the employment and labour group at Bryan Cave Leighton Paisner

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