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Neurodiversity: the importance of recognition and support in the workplace

June 25, 2024

I have recently become much more aware of neurodiversity as someone I know has been diagnosed with ADHD. Although that is not my story to tell, hearing about the diagnostic process and learning more about what that means for them and its impact on their life has been very interesting.

What is neurodiversity or neurodivergence?

There is not a particularly conclusive definition of neurodiversity but essentially it encapsulates normal differences in brain function. These differences can have an impact on, for example, learning, executive function, sensory functions, social interaction and attention among other things.

Conditions frequently grouped under this umbrella term are those such as autism, ADHD, dyslexia and dyspraxia, among others.

In a recent survey published by CIPD 31% of respondents said that they had not told their line manager or HR about their neurodiversity. 34% said that there was too much stigma around the issue, with 29% saying that they were concerned about the impact on their career. With some research indicating that as many as 1 in 10 people or more may be neurodivergent (although exact statistics are difficult to find) there is clearly a real need for employers to be aware of this issue.

How the effects of neurodivergence manifest will vary from person to person which is why it is important for an employer to understand, where they are made aware of an issue or suspect there to be one, the effect of the condition on the person and not the label attached.

Is being neurodiverse a disability?

Neurodivergence could be, but is not automatically, a disability. I should be clear though that I use the word disability in a legal sense only and not to imply anything further about those that are neurodiverse.

From an employment law perspective, in terms of the Equality Act 2010, disability is a legal test not a medical one and so the ‘over-medicalisation’ can see employers tying themselves in knots. It is instead important to understand the effect of the condition. Specifically, does it have an adverse (more than minor or trivial) and long-term (already lasted or likely to last 12 months or more) effect on the individual’s ability to carry out normal day to day activities.

For example, those with social anxiety may struggle to leave the house or socialise with friends or to carry out everyday tasks which others may find easy. Individuals who have sensory problems may find large groups of people or a crowded office overstimulating which could affect their ability to concentrate.

While medical input should always be sought, it is for the employer to weigh up all the information available to it and decide whether the test is met (although, ultimately, a tribunal will have the final say).

Where the test for disability is met employers need to take extra care to avoid discrimination claims and, in certain circumstances, they will need to make reasonable adjustments.

What adjustments are required?

As you might expect, this will depend on: the effects of the condition and the individual concerned; factors such as the size and resources of the employer; and whether any proposed adjustments would, in fact, alleviate the disadvantage suffered.

An employer should speak to the employee and, where necessary, get input from an occupational therapist around those adjustments. Generally, they could be things like the provision of equipment (some with sensory impairment might find noise cancelling headphones helpful, for example) or the consideration of the environment or related noise (location of desk/seating, level of noise in the environment in question, more home working).

Adjustments shouldn’t be viewed as treating a person more favourably nor should they be refused simply because ‘everyone will want it’. Remember that employers have a legal obligation to make adjustments for employees with disabilities and if they don’t, the consequences are great, both from a financial and reputational perspective.

Practical tips

  1. Promote a culture where employees can come forward. The statistics suggest that they might not feel comfortable speaking to their line manager or HR so consider buddies or workplace mentors or having a champion as part of a Diversity, Equality and Inclusion Committee (if you have one). Make sure your policies, procedures and training practices are up to date. If employees don’t come forward you can’t help them and potentially identify issues which may manifest as performance or conduct issues but in reality, have nothing to do with that.
  • Offer support and don’t make assumptions. If an employee tells you they are neurodiverse don’t make assumptions about what that will mean or what you should do. Have a conversation with them and ask them to explain (if they feel comfortable) how their neurodiversity affects them and what support they feel they need to do their job well. You will probably find that it is not that onerous at all.
  • Keep the situation under review and be aware of the issue as part of broader processes. Check in with the employee – do they feel that the adjustments (if any) are still working? Do those need to change? Is their neurodiversity the real reason behind the performance concerns you have noticed?  Do they need extra support? As with everything, including neurodiversity, communication is key and will probably help you to avoid longer term issues compared with burying your head in the sand or viewing the issue as an inconvenience.

Neurodiversity is a vast topic and not one I can do justice to in a short blog so if you need advice on this or any other area of employment law then please get in touch with the Blackadders Employment team with offices throughout Scotland. Please connect with me on LinkedIn for further employment law updates and developments.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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