There has been an increasing awareness around neurodiversity in recent years, and this has been reflected in an uptick in queries from businesses. These often centre on supporting neurodiverse employees to thrive in the workplace and businesses meeting their obligations as an employer.
So, what can it be helpful for employers to know?
- What is neurodiversity?
- Are neurodiverse employees protected under the Equality Act?
- How can an employer support a neurodiverse employee?
- What should I do if an employee tells me they believe they are neurodiverse but have not yet been formally diagnosed?
What is neurodiversity?
In brief, ‘neurodiversity’ refers to the natural diversity in human brains. Neurodivergence is the term for when someone’s brain processes, learns, and/or behaves differently from what is considered more “typical”. Autism and ADHD (attention deficit hyperactivity disorder) are two of the more well-known types of neurodivergence.
Someone can have more than one type of neurodivergence. Furthermore, they can be diagnosed at any time in their life, and it is not uncommon for someone to be diagnosed in adulthood or to only recognise/believe that they may be neurodivergent later in life. This can mean that businesses sometimes find that an employee may have worked for them for some time without the employee considering/raising that they are / may be neurodivergent.
An important building block for complying with your duties as an employer and creating a supportive workplace environment for all employees is ensuring awareness and understanding of neurodiversity. This is particularly important for those with people management responsibilities as it can help to ensure that all employees are managed (and if needed, supported) appropriately, effectively and in line with the law.
There are many sources of information regarding neurodiversity, and employers may find the ACAS guidance a helpful initial port of call.
As you would expect, individual experiences of neurodivergence will differ, and individual circumstances will need to be taken into consideration accordingly.
Sometimes, an employer might notice that an employee is having difficulty with certain things at work and may think that the employee might be neurodivergent. If your employee hasn’t approached you about this, it will be important to handle the situation sensitively and appropriately, and you should get in touch for advice before acting.
Are neurodivergent employees protected by the Equality Act?
It’s likely that in many cases an employee who is neurodivergent will be considered disabled for the Equality Act (EqA), even if they may not usually see themselves in this way.
In brief, the EqA states that a person has a disability if:
• They have “a physical or mental impairment” and
• That has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
This is significant for employers as, in brief:
- Employees should not be treated less favourably because of a protected characteristic, such as disability, as this is direct discrimination
- Employees are protected from indirect discrimination – broadly, this can occur where you apply an apparently neutral provision, criteria or practice, such as a dress code, but it puts an individual who has a protected characteristic at a disadvantage, and it can’t be objectively justified
- An employee shouldn’t be treated unfavourably because of something arising in consequence of their disability. If this occurs, an employer will need to show that the treatment is a proportionate means of achieving a legitimate aim. Evidencing proportionality is not always an easy task for businesses
- Employers are under a duty to make reasonable adjustments if a provision, criterion or practice, a physical feature of the employer’s premises or the absence of an auxiliary aid puts a disabled employee at a substantial disadvantage
- Employees are protected from harassment – that is, unwanted conduct relating to a protected characteristic that has the purpose or effect of either violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Bear in mind that this doesn’t just cover the direct acts of the business, an employer can also be vicariously liable for the harassing acts of one employee towards another done ‘in the course of employment’, so it’s important to take reasonable steps to prevent this from occurring.
How can an employer support a neurodivergent employee?
There are many ways employers can support neurodivergent employees, but what is appropriate / required will depend on the individual situation. It could, for example, involve taking steps to support an employee with concentration if this is an area of challenge for them or adjusting how information and instructions are provided, such as providing details of work requests in writing in a clear format rather than asking for tasks to be done verbally if verbal instruction is difficult for an employee to follow.
Making reasonable adjustments / taking supportive steps will usually involve discussion and consultation with the employee, and it can often be advisable to seek support from occupational health or a GP.
If you are looking for some background information on some of the more common adjustments that may be helpful for neurodivergent employees, you may find the ACAS guidance on reasonable adjustments for neurodiversity informative, although we cannot stress enough that each individual situation needs to be fully considered on its own facts.
What should I do if an employee tells me they believe they are neurodiverse but have not yet been formally diagnosed?
Whilst there can be many reasons why an employee may not have a formal diagnosis, e.g. personal choice, we are increasingly finding that many employees do wish to be formally diagnosed but are experiencing difficulty in obtaining a diagnosis. Often this is due to very long waiting times on the NHS, and where diagnosis is possible privately, the prohibitive costs are involved.
Businesses should bear in mind that a formal diagnosis isn’t necessary for someone to be considered disabled under the EqA and shouldn’t wait for a formal diagnosis to put reasonable adjustments in place if /where needed.
When it comes to reasonable adjustments, there can be an added layer of complexity if an employee is awaiting a formal diagnosis and they are experiencing challenges in the workplace, as they may not yet know what workplace support could work for them. In such a situation, it will be important for you to work with the employee and explore options, as well as keeping any agreed adjustments under review to ensure they remain appropriate for the employee. It may be that support needs change over time or that an adjustment you both anticipated would work does not do so as well as hoped and a different adjustment would be more beneficial. Advice from occupational health or a GP is often a key step to consider.
If you need help with an HR matter in your business, please get in touch for specific advice.