Law

Neurodiversity in the workplace: Legal protections and best practices

By Sarah Hayes [email protected]

Published: July 17, 2024 | Updated: 17th July 2024

Over recent years, awareness of neurodiversity and how this may impact upon individuals within the workplace has grown significantly.

As a society, our understanding of neurodiverse conditions has also hugely increased with the benefit of recent medical research and more inclusive social attitudes.

As a consequence, it is increasingly common for adults to be diagnosed with conditions that they may have been living with for a number of years without formal diagnosis.

What does neurodiversity mean?

Neurodiversity concerns the different ways that people process and interpret information. It is estimated that 15-20% of the population are neurodivergent. Neurodiversity encompasses a wide range of conditions, including but not limited to attention deficit hyperactivity disorder (ADHD), autism, Asperger’s syndrome, dyslexia, and dyspraxia.

What legal protection does as an employee have?

All employees have protection against discrimination under the Equality Act 2010, regardless of how long they have been employed for.

Disability is a protected characteristic under the Equality Act and it has a specific legal meaning. It applies to both physical and mental impairments.

Assessing whether or not someone is disabled under employment law, involves looking at how long the individual has experienced (or is likely to experience) their symptoms for and the impact of their symptoms on their normal day to day activities.

This will often require obtaining medical advice to understand the nature and extent of the neurodiverse condition(s) and whether the meet the legal definition of a disability.

If an employee meets the legal definition of a disability and they suffer less favourable treatment that non disabled employees as a consequence of their disability, they may have a claim for disability discrimination which they could bring in an employment tribunal.

What steps should employers be taking?

Employers have legal responsibilities in this area and there are several examples of good practice which can be adopted in the workplace.

Many workplaces are proactively encouraging awareness of neurodiversity and are putting in place tools to support staff. This can, in turn, encourage communication and transparency within an organisation.

Being neurodiverse can affect individuals in different ways and employers should be empathetic and supportive of any issues that are affecting an individual’s ability to work.

If an individual has neurodivergent needs, they should feel comfortable to discuss this with their employer. A dedicated person to contact with concerns and a clear route to request adjustments and helps should be set out for employees to follow.

A key practical step to take is to ensure that managers are sufficiently and regularly trained on neurodivergent conditions and equality in the workplace and that this training is implemented in practice in the organisation.

Unfortunately, neurodivergence is not straightforward to detect and it is not always easy for an individual to obtain a medical diagnosis. Different forms of neurodivergence will have different characteristics, and the effects can vary from individual to individual.

Neurodivergence can also change and evolve over time. There are lots of pro-active considerations and adjustments that employers can make to pre-empt and accommodate the diverse needs of employees.

Where an employee is legally disabled, an employer has a legal obligation to make reasonable adjustments to support that individual at work. Whilst there are many examples of adjustments that can be made to support neurodiversity, this can involve changes to the employee’s working arrangements or physical working space.

For instance, an employer should consider the physical working environment. This may include monitoring exposure to sensory input (e.g. noise and lighting) to alleviate some common adverse symptoms of those that are neurodiverse.

It could also include allowing an individual to work from home or enabling them to have a quiet and allocated space to work in whilst in the office if they are finding it challenging at work. Individuals may need to take more breaks or space to use their personal copying mechanisms at work away from their colleagues.

It may also involve reducing distractions in the workplace by allowing staff to book meeting rooms for tasks that require a lot of concentration or offering mentoring and work sharing arrangements for tasks which cause the individual particular concern.

Employers should also carry out risk assessments to consider the risks in the workplace which affect those who are neurodivergent and put in place steps to mitigate any risks identified.

There is some useful guidance and related content on the ACAS website which is aimed at both employees and employers on neurodiversity at work which can be found here (https://www.acas.org.uk/archive/neurodiversity). It is expected that this page will be updated by ACAS during the course of 2024 with further supporting materials.

If you require any legal advice relating to this article or the surrounding law, please contact Sarah Hayes [email protected] or 023 8048 2165.

Latest Posts

It’s the swimming that counts! Trethowans to take on charity relay across the English Channel

Enable Law welcomes ‘inspirational’ mental capacity team leader Annabelle in Southampton

Insolvency partner Katie is latest to join Shakespeare Martineau’s growing Soton team

Soton geotechnical & environmental consultants snapped up by larger group – Trethowans advises

Trethowans advises on ‘landmark deal’ which sees Fareham antivirus company merge with US firm

All Law Stories »

Latest Posts

Eight years on, college friends Reece & Carl move their thriving media agency to new Havant office

Hamble local Dave takes charge at The Bugle with new menu and events - starting with Six Nations

PR firm Grayling promotes Holly & Sophie and welcomes grads Kaya & Jake in Southampton

Alison Craig on successfully leading and managing change in this month’s Leadership Matters

Accountants Azets make 11 promotions across Portsmouth, Soton, Winchester & Havant

All Latest News »