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Neurodiversity refers to the concept that neurological variations, such as Dyspraxia, Dyslexia, ADHD, and Autism Spectrum, among others, are natural human differences to be respected, not disorders to be cured. In the workplace, embracing neurodiversity can drive innovation, creativity, productivity and profitability, as well as contributing to an inclusive culture. However, neurodiverse individuals can face discrimination and exclusion.
In 2023, the number of UK employment tribunal cases related to neurodiversity have increased, which upholds the rights of neurodiverse individuals and influences workplace policies and practices. Understanding these cases is crucial for employers, HR professionals, and legal practitioners to ensure compliance and foster a neurodiverse-friendly work environment, while at the same time avoiding risk and damage to a business and its reputation.
Understanding neurodiversity
Neurodiversity is a concept that recognises and respects variations in the human brain regarding sociability, learning, attention, mood and other mental functions, viewing them not as deficits, but as natural, valuable variations in the human genome. It encompasses a wide range of neurological differences that are unique to each individual and can influence how people think, learn, and process information. Some neurodiverse individuals may have exceptional abilities in certain areas, such as pattern recognition, memory, or creativity, while they may face challenges in others.
Neurodiversity holds significant importance and plays a crucial role in enriching the workplace. Firstly, it promotes diversity and inclusion, fostering a culture where all employees are valued for their unique abilities. Secondly, neurodiverse individuals often bring unique perspectives and problem-solving skills, driving innovation and creativity. For example, individuals with Autism may excel in tasks requiring attention to detail, while those with ADHD may thrive in dynamic, fast-paced environments.
Moreover, embracing neurodiversity can enhance an organisation's reputation, through improved profitability or productivity, as well as demonstrating a commitment to inclusivity. It can also widen the talent pool, attracting talented individuals who might otherwise be overlooked.
However, to reap these benefits, organisations must create supportive environments that accommodate neurodiverse individuals' needs. This can include flexible work arrangements, specialised training, and adjustments in communication or task assignment.
Legal framework and neurodiversity
Neurodivergence in the UK may not always be classified as a disability under the Equality Act 2010, but it is often recognised as such. Section 6(1) of the Equality Act 2010 states that a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This can include social interaction and communication. The employment tribunal concentrates on the impact of the condition rather than its precise medical diagnosis.
If a neurodivergent individual is deemed disabled, it is unlawful for an employer to discriminate against them. This includes treating them less favourably due to their disability, subjecting them to harassment, failing to make reasonable adjustments, or victimising them for raising concerns about disability discrimination.
It is important to note that employers can only be held liable for discrimination arising from disability or failure to make reasonable adjustments if they were, or should have been, aware of the employee's disability. Conditions like Autism and ADHD are often termed "invisible" disabilities, as they may not be immediately apparent and the employee may choose not to disclose them or to "mask" them (which is entirely within their rights). However, employers may be expected to have knowledge of a disability if there were indications that were not investigated.
Additionally, neurodivergence is often associated with mental health conditions like anxiety and depression, which could themselves fall within the definition of disability.
In essence, unless a neurodivergent individual's condition is mild, they are likely to be classified as disabled for discrimination purposes. They do not need a formal diagnosis or to have disclosed any formal diagnosis to be protected.
In addition to these legal protections, the UK government has also launched the 'Disability Confident' scheme in November 2016, encouraging employers to make the most of the talents that disabled individuals can bring to the workplace.
2023 UK updates and key takeaways
Aecom v. Mallon: Employers have an obligation to make reasonable adjustments
In the case of AECOM Ltd v Mallon, the Employment Appeal Tribunal (EAT) upheld a ruling that an employer failed to make reasonable adjustments for a job applicant with dyspraxia who requested to make his application orally rather than complete an online form. The applicant, M, had difficulties expressing his thoughts in writing due to his condition and was anxious about the process of completing an online form. Despite M's repeated requests to make an oral application, the employer insisted on him explaining his specific difficulties with the online form via email. The EAT ruled that the employer should have made reasonable enquiries about the extent of M’s difficulties and should have called M to facilitate his application, given his problems with written communication.
The key takeaways from this case are if there are indications that there may be a disability, make enquiries and understand if, and to what extent, there is an obligation to make reasonable adjustments. When making enquiries, consider whether adjustments to the method of communication are necessary.
Date of Decision: 10 August 2023
Duncan v Fujitsu Services Ltd: Employers should consider reasonable adjustments and avoid contacting relatives without the employees consent
In the case of Duncan v Fujitsu Services Ltd, the employment tribunal ruled that the employer failed to make reasonable adjustments for an employee with Autistic Spectrum Disorder. The employee, D, had difficulties with oral communication. The employment tribunal held that it would have been a reasonable adjustment to allow D to communicate primarily in writing, not require him to call in when sick, and provide a written agenda before meetings. D also won a harassment claim concerning the employer's decision to discuss his sickness absence with his mother without his consent, in violation of data privacy law.
The key takeaway from this case suggests that while it might be appropriate in certain situations to contact a relative without consent, it is advisable to clearly outline this in a policy and, where possible, agree on this with the individual in advance.
Date of Decision: 28 June 2023
Rackham v Judicial Appointments Commission: Employers have a duty to make reasonable adjustments to remove any substantial disadvantage
In the case of Rackham v Judicial Appointments Commission, the employment tribunal highlighted the fact-specific nature of these cases and stated that employers can reasonably refuse adjustments that would compromise essential aspects of the selection process. The claimant, R, has Autism Spectrum Disorder and Asperger’s Syndrome, which made one-to-one communication and dealing with hypothetical situations challenging for him. However, the employment tribunal ruled that it was not a reasonable adjustment to simplify the written questions in a skills test for a judicial role or allow R to complete a practical task instead, as the questions were designed to reflect the role's requirements. R was given extra time to complete the test with the assistance of someone he knew and was allowed to submit his answers offline or by email. The employment tribunal also ruled that it was not reasonable to require the employer to provide a trained autism facilitator to assist R. The employment tribunal noted that the test had been reviewed by the employer’s Diversity and Engagement Team to ensure it was effective and did not disadvantage disabled individuals.
The key takeaway from this case serves as a reminder that where an employer uses tests and assessments as part of a recruitment process, it is under a duty to make reasonable adjustments to them in order to remove any substantial disadvantage faced by disabled candidates.
Date of Decision: 28 June 2023
McQueen v General Optical Council: Employers should obtain appropriate medical advice
In the case of McQueen v General Optical Council (EAT, 2023), an employee with autism was disciplined for rude and aggressive behaviour. However, the employment tribunal determined that this behaviour was due to his short temper/personality, rather than his disability. This conclusion was upheld on appeal. It is important to approach this aspect of the decision with caution, as other cases have highlighted that only a loose connection is required between the "something" leading to the unfavourable treatment and the disability in a "discrimination arising from disability" claim. While the principal claim was dismissed, Mr. McQueen's victimisation claim was successful due to his employer's mishandling of his grievance.
The key takeaway from this case is a reminder for employers to get appropriate medical advice and consider any necessary adjustments to working practices to support colleagues. This should help to alleviate the risks of challenging behaviour, prevent the risk of discrimination occurring, and provide the employer with evidence and a defence should they find themselves involved in a claim.
Date of Decision: 10 March 2023
Borg-Neal v Lloyds Banking Group: Employers should consider mitigating factors
In the case of Borg-Neal v Lloyds Banking Group (ET, 2023), a manager was dismissed for using the full “N” word in a race awareness training session. The employment tribunal agreed that the N word should never be used in a professional setting, acknowledging its potential to cause distress, particularly to black employees. However, it ruled that the dismissal was unreasonable given the claimant's dyslexia and the context of the comment. The comment was made during a training session exploring intention versus effect, and the claimant asked the question genuinely seeking an answer, not intending to use the racial term or offend others. Considering these factors, the employment tribunal determined that no reasonable employer would have dismissed the claimant. It took into account expert medical evidence that the claimant's dyslexia contributed to his unfair dismissal. The employment tribunal also ruled that the claimant was dismissed due to something arising from his dyslexia. Medical evidence showed that the claimant's dyslexia could cause him to impulsively say things when concentrating on complex questions, meaning his inappropriate use of language was consistent with his disability.
The key takeaway from this case is that it is important to remember that employers with a zero-tolerance policy on offensive language are still obliged to carry out a full investigation into the alleged incident. Employers should consider any mitigating factors such as the context in which the language was used, any disability-related element, length of service and prior disciplinary record when deciding the outcome. An employer should also consider whether a lesser penalty is more appropriate.
Date of Decision: 4 August 2023
As disputes increase, courts are also themselves demonstrating heightened sensitivity towards the needs of neurodiverse individuals involved in employment tribunal processes. Employment tribunals have specific guidelines to support vulnerable witnesses and parties. Recent cases underscore potential adjustments for neurodiverse claimants, including:
In Habib v Dave Whelan Sports (EAT, 2023), a dyslexic claimant was granted a rehearing as the employment tribunal initially failed to consider that inconsistencies in evidence should not necessarily disadvantage a dyslexic witness.
Adjustment requests are becoming more frequent, varying from modifications in document usage to permission to bring an assistance dog. As awareness and understanding continue to grow, we can anticipate more "ground rules" hearings to agree on suitable adjustments for the main hearing and an increased use of intermediaries.
What should employers do?
In the evolving landscape of employment, it is important for employers to acknowledge and adjust for neurodiversity in their workplaces. If your organisation has yet to adapt, it is time to act.
As neurodiversity garners increased attention, several key points emerge such as neurodivergent employees are likely to be classified as disabled under discrimination law, thereby necessitating employers to make reasonable adjustments as required. Also, ignorance or disregard of neurodiversity in matters of recruitment, misbehaviour handling, or other HR processes can potentially lead to litigation. Employer's should consider enhancing managers' understanding and awareness of neurodiversity can foster a more inclusive environment and reduce legal risks, such as harassment claims due to inappropriate comments. There are opportunities for employers to specifically recruit neurodivergent individuals for certain roles, particularly in technical, innovative and creative fields
We can expect to see more employment tribunal litigation featuring adaptations for neurodivergent claimants in the future however neurodiversity is increasingly being recognised as a competitive advantage in businesses and may soon be considered a business necessity, much like gender diversity
All these factors emphasise the growing need for robust occupational health support, a resource that many employers find challenging to secure.
This article was first published on Law360.com.
