Neurodiversity, employment policies and employment claims: what’s the latest?
25 October 2023
With neurodiversity becoming a more prominent focus of diversity strategies and litigation, it may be time for employers to think differently about people who think differently.
If you are an employer then, unless your workforce is very small, you probably employ some neurodivergent people. You may, especially if you’re a larger employer, be looking at increasing neurodiversity in your workforce to reap some of the benefits associated with doing so. You may have already come across a workplace dispute involving neurodiversity. In this article, we identify four new and emerging trends around neurodiversity, employment policies and employment claims and look at their impact on employers. We look at:
- the increase in workplace diversity initiatives focussed on neurodiversity;
- the rise in diagnoses;
- the (striking) increase in employment tribunal litigation involving neurodiversity; and
- the closer attention on the needs of neurodiverse claimants in employment tribunal hearings.
But, first, what is neurodiversity anyway?
Neurodiversity is an expression first coined by a sociologist who argued that society needed a variety of ways of thinking, just like the planet needs biodiversity.
It has been said that someone is neuro-divergent if they are not neuro-typical but this is not an easily understandable concept. We are essentially talking about people with a condition involving some kind of neuro-difference. This includes various conditions which are medically defined, but not always medically diagnosed, including autism, ADHD, dyslexia and dyspraxia. Estimates say this is an many as 15-20% of the UK adult population.
Increase in workplace diversity initiatives focussed on neurodiversity
Several employers have developed initiatives in this space. Pioneers include Microsoft, JP Morgan, EY, Google, SAP, DXC Technology, Ford and Amazon. These initiatives generally focus on three areas:
- Recruitment: adjusting the usual processes, for example, by providing questions in advance, allowing written answers or even targeting recruitment for certain roles at neurodivergent people.
- Integration: using informal buddy systems, formal mentorships or coaching and deploying specialist software where useful.
- Awareness and acceptance: through creating networks and guidance/training on different communication styles and needs.
This is partly driven by an understanding of the benefits of neurodiversity. Common traits of neurodivergent people such as hyperfocus, creativity and innovative thinking can be highly advantageous in the workplace. It also reflects a growing awareness of how hard it can be for neurodivergent people to navigate the modern workplace, including the physical environment but also the need to understand others’ intentions and manage boundaries. Recent reports (such as this research commissioned by Neurodiversity in Business) highlights the heavy toll this can take on their mental health and wellbeing.
The impact of current initiatives makes for a compelling business case. For example, JP Morgan’s analysis has shown how their autistic employees are significantly more productive than their more experienced peers. Microsoft have drawn similar conclusions, and also point to higher retention rates.
As the business case for neurodiversity builds and the challenges become more widely talked about, more employers seem likely to follow suit.
Rise in diagnoses (and self-diagnosis?)
As awareness of neurodiversity has increased, so too have the number of diagnoses. Taking autism alone, between 1998-2018 there was a 787% increase in people being diagnosed. Formal diagnoses are on the rise for adults as well as children, but they are still most common for children and young adults.
This may impact employers in several ways. The chances are increasing that at least some of your employees will be going through (or considering) a journey to get a formal diagnosis. They’ll be looking for a psychologically safe environment in which they might share their diagnosis and ask for support. You may, at the same time, find more younger people starting work with a formal diagnosis received in childhood. They’ll also be weighing up whether to share their diagnosis. They may have already had adjustments at school or university, and be coming to the workplace with higher expectations of the support you might offer. Thinking about the demands this could place on your managers, it makes increasing sense to develop policies and raise manager awareness.
Anecdotally, many older adults are starting to describe themselves as neurodivergent based on an understanding of their own circumstances even if they do not have a formal diagnosis. This increase in self-diagnosis can be challenging for employers. For example, when is it helpful or appropriate for you, as an employer, to seek a more formal diagnosis? Should you allow individuals to “self-identify” as disabled if collecting data for disability monitoring purposes (a topic we explore in our earlier article on disability reporting)? It’s worth remembering that medical diagnosis isn’t essential for the purposes of a disability discrimination claim – although there’s still a legal test as we explore next.
Increase in employment disputes relating to neurodiversity
Is neurodivergence a disability?
Neurodivergence is not inevitably a disability within the meaning of the Equality Act 2010 (or the Disability Discrimination Act 1995 in Northern Ireland) but is often conceded or found to be so. A person is disabled if they have a mental impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (which would include social interaction and communication). The tribunal is supposed to focus on the effect of the condition rather than on its exact medical diagnosis. Substantial in this context means “more than minor or trivial” which is a low bar. The law also disregards any medications or coping mechanisms that would mask the true effect of the impairment.
If a neurodivergent person is disabled then it will be unlawful for you, as an employer, to discriminate against them, including for example by:
- subjecting them to less favourable treatment on the grounds of their disability;
- subjecting them to harassment;
- failing to comply with the duty to make reasonable adjustments;
- (in Great Britain) treating them unfavourably because of something arising in consequence of their disability without objective justification (the test is different in Northern Ireland, which is treating them less favourably for a reason related to their disability); or
- victimising them for complaining about disability discrimination.
You can’t be found liable for discrimination arising from disability or failure to make reasonable adjustments unless you knew, or should have known, about the employee's disability. Conditions such as autism and ADHD are often described as “invisible” disabilities, meaning that they may be concealed or revealed only in certain circumstances and the employee may choose not to disclose them to you. You can, however, be fixed with knowledge of a disability if there were clues or warning signs which were not followed up.
It is also important to note that neurodivergence is often concurrent with mental health conditions such as anxiety and depression. These conditions might count as disabilities in themselves.
In practice, all of this means that a neurodivergent individual is reasonably likely to qualify as disabled for discrimination purposes unless their neurodivergence is mild. They do not need a formal diagnosis, nor to have disclosed any formal diagnosis they do have, in order to trigger protection.
The rise in employment tribunal claims relating to neurodiversity
Official statistics don’t log which tribunal claims relate to neurodiversity. Our own search of the employment tribunal judgment database, however, reveals a striking upward trend:
It’s a similar story with industrial tribunal claims in Northern Ireland. Our search showed that there were 19 cases in the four-year period between 2018 and 2022, while there were only eight cases in the 14 years from 2003 to 2017.
Recent reported caselaw has tended not to focus on whether the claimant was disabled, but on the link between their condition and their behaviour. Examples include:
- Morgan v Buckinghamshire County Council (EAT, 2022): where a social worker with autism and dyslexia was dismissed for inappropriately giving gifts to children. The claimant refused an occupational health assessment, which was key to the employer successfully arguing that any unfavourable treatment was objectively justified. However, a manager had criticised Ms Morgan’s “choice” to mask her autism, describing this as deliberately withholding her condition and putting children at risk, and that was ruled to be harassment.
- McQueen v General Optical Council (EAT, 2023): where an employee with autism was disciplined for rude and aggressive behaviour, but the ET concluded that this was down to his short temper/personality rather than his disability, and this conclusion was (narrowly) upheld on appeal. This aspect of the decision is to be treated with caution since other cases have emphasised that, in a “discrimination arising from disability” claim, only a loose connection is needed between the "something" leading to the unfavourable treatment and the disability. While the principal claim was dismissed, Mr McQueen’s victimisation claim succeeded on the basis of his employer’s mishandling of his grievance.
- Borg-Neal v Lloyds Banking Group (ET, 2023): where a manager was dismissed for using the full “n” word in a race awareness training session. The ET found that this was disability discrimination because the manager’s dyslexia impeded his ability to properly express himself.
- AECOM v Mallon (EAT, 2023): where a dyspraxic job applicant asked to make an oral job application rather than filling in a form. The employer was found to have failed in its duty to make reasonable adjustments. Assuming the claimant turned out to be a genuine applicant, the employer should have picked up the phone rather than enquiring about his difficulties by email.
Closer attention on neurodiversity in employment tribunal hearings
Alongside the trend of an uptick in disputes, courts seem to be paying closer attention to the needs of neurodivergent people caught up in the tribunal process. Employment Tribunals in Great Britain have specific guidance on supporting vulnerable witnesses and parties, while Industrial Tribunals in Northern Ireland follow similar principles. Recent caselaw highlighting potential adjustments for neurodiverse claimants includes:
- McEldowney v Randox Farming Limited (IT, Northern Ireland, 2021) where adjustments recommended by an educational psychologist included the claimant being provided with a registered intermediary and the hearing proceeding at a slower pace; and
- Habib v Dave Whelan Sports (EAT, 2023): where a dyslexic claimant won a rehearing of her tribunal claim because the tribunal had not clearly appreciated that inconsistencies in evidence should not necessarily be taken against a dyslexic witness.
We are seeing more adjustment requests, ranging from changes to the way in which documents are used through to being allowed to bring an assistance dog. As levels of knowledge and understanding continue to increase, we may see more “ground rules” hearings to agree on appropriate adjustments for the main hearing and greater use of intermediaries.
Conclusion and learning points
Overall, it’s clear that employers can no longer afford to ignore the issue of neurodiversity and the impact on their workplaces, so it’s time to think differently if your organisation has fallen into that trap.
As neurodiversity becoming a more prominent issue for employers, the key learning points are:
- Neurodivergent employees are reasonably likely to qualify as disabled for the purposes of discrimination law. This means that you’ll be under a legal duty to make adjustments where needed.
- There’s potential for litigation if your managers don’t consider neurodivergence when tackling misbehaviour or in relation to recruitment or other HR processes.
- Equipping managers with greater knowledge and awareness about neurodiversity is a positive step towards increasing their skill and confidence. It could help create the conditions for your employees to share their neurodivergence as well as mitigating the legal risks (for example, of harassment claims arising from inappropriate comments).
- Adaptations to environment and processes for neurodivergent claimants seem likely to be a more common feature of tribunal litigation in future.
- There are real opportunities for employers to target neurodivergent applicants for certain jobs, including technical and creative roles.
- Neurodiversity is increasingly seen as a competitive advantage and we may soon be taking about it as a business imperative (as we do, for example, with gender diversity).
- All of this is likely to increase the need for good occupational health support, which is something many employers will agree is hard to find (the government is looking at developing workplace occupational health capacity as we’ve written about here.)
For support with training on neurodiversity or inclusion more generally, and for advice on diversity policies, diversity monitoring, workplace disputes and tribunal claims, please do get in touch.