Neurodiversity in the workplace: the employment law considerations

Being neurodiverse is defined by the Oxford Dictionary as, “showing patterns of thought or behaviour that are different from those of most people, though still part of the normal range in humans”. Effectively, neurodiversity encompasses the differences in the way individuals behave, learn, think and act. The Oxford Academic British Medical Bulletin published in September 2020 set out that one in five people are neurodivergent, whereby their brain functions differently than what is viewed by society as being “standard” or “normal”. Examples of neurodiverse conditions include, but are not limited to ADHD, Autism, Dyspraxia, Dyslexia and Dysgraphia.

Research conducted by the Institute of Leadership & Management in November 2020, set out that half of people managers and leaders would not hire a neurodiverse employee, linked to societal misconceptions that neurodiverse individuals will require too much day-to-day support, will not “fit in” with the organisation’s culture, or that they simply will not have the required skills to do the job.

As a result, many neurodiverse individuals are reluctant to tell their employer that they have a certain condition, concerned that it may affect their position in the organisation. There has, however, been significant research undertaken to prove otherwise with some large organisations positively reporting on the value that their neurodiverse employees have added to their business. One example in particular, which has been widely shared in the media, is the JP Morgan & Chase Autism at Work programme which stated that autistic employees were, “48% faster and up to 92% more productive than their non-autistic counterparts” due to their “strong visual acuity, attention to detail, and a superior ability to focus”.

From a legal perspective, employers should be mindful that an individual’s health condition could meet the test for a disability in law, which is defined in the Equality Act 2010 as a “physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. If an employer’s neurodiverse employees have a condition which meets this test, disregarding any impact that medication has on their condition, there will be a positive obligation on the employer to make reasonable adjustments to remove any negative impact the employee’s condition has on their ability to do their job. Employers should, therefore, be mindful of their obligations and the potential enhanced protections that neurodiverse individuals have at the workplace from an employment law perspective.

Employers should create a supportive and creative space for neurodiverse employees at the workplace, recognising the value they can contribute to the organisation. Of particular interest to the STEM sector is the Harvard Business Review which set out in a report named, “Neurodiversity as a Competitive Advantage” in 2017, that certain neurodivergent conditions can “bestow special skills in pattern recognition, memory or mathematics”.

Employers should be willing to employ neurodiverse individuals to obtain new ideas, concepts, thought processes for working and operating the business. To allow neurodiverse employees to work to their full potential, recognising that the traditional way of office working, or production line operations may not be compatible with their brain function, employers should consider introducing any of the following:

  • distraction-free workspaces
  • option to work from home
  • noise-cancelling headphones
  • neurodiversity coaching
  • flexible start and finish times.

Employers should also consider adjusting procedures where communication is the focus, for example the appraisal process, and explore alternative ways in which neurodiverse employees can engage and participate.

If you would like legal input on a situation related to neurodiversity at the workplace, please do not hesitate to contact our team of employment law experts who can guide you further.

This update contains general information only and does not constitute legal or other professional advice.

Dawn Robertson, Partner & Accredited Specialist in Employment Law: / 0131 222 3242 / Connect with Dawn on LinkedIn