Employment Advice

The law and neurodivergence in the workplace

World Autism Awareness Day 2022 will be celebrated on Saturday 2nd April, and is an excellent opportunity for employers to learn more about assisting workers with Autism Spectrum Disorder, a form of neurodivergence.

16 Mar 2022

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Esther Marshall

Esther Marshall

In this article, we take a look at neurodivergence in the workplace and how employers can both comply with the law and support neurodivergent workers.

What is neurodiversity?

Neurodiversity is a broad term for the infinite number of ways the human brain can operate, leading to diverse ways of thinking, retaining memories, and paying attention.

People work best when they are supported in different ways. Those with dyslexia, ADHD or autism may struggle in a traditional workplace environment to perform to the best of their ability. Understanding neurodiversity can help employers make better decisions and get the most out of their team.

Supporting neurodiverse employees

One of the biggest problems for employers is that employees often do not feel comfortable disclosing their neurodiverse condition in the workplace, or they may be undiagnosed. When employers fail to actively support neurodiverse workers, they could miss out on the benefits of thought diversity, increased employee productivity, and even struggle to hire the best talent.

Neurodiversity and the law

It is important for employers to understand that an employee’s neurodiversity could qualify as a disability under the Equality Act 2010. However, not all neurodivergent employees will consider themselves to have a disability. Under the law, employees have the right to identify as having a disability, or not to identify. But the legal definition of ‘disability’ under the Equality Act 2010 means that neurodivergent workers are likely to meet the conditions. Government guidance states:

‘A disability can arise from a wide range of impairments which can be … developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia.’

If an employee identifies as having a disability, they are provided with certain rights and protections under the law. Employers must make reasonable adjustments to allow them to perform their best work and protect them from discrimination, harassment and victimisation.

Similarly, workers are protected from ‘discrimination by association’. This means that if an employee is associated with a person who has a disability, such as a partner, child, or person they care for, they are also protected from discrimination, victimisation and harassment under the law.

Workers with a neurodivergent condition should also be wary of stating that they do not consider themselves disabled, as this could affect their legal protection.

Reasonable adjustments

Many reasonable adjustments may be required to help neurodivergent workers perform best. Typically this may include things related to focus, attentiveness and distraction. For example, allowing the worker to take shorter breaks throughout the day, providing them with a space free from distraction or enabling them to work from home and support with social interaction in the workplace. Support for neurodivergent workers should be assessed on a case-by-case basis.

M&P Commentary

Esther Marshall, an Associate Solicitor dealing with employment law, said:

“Neurodiversity in the workplace can be of real benefit to employers. However, although things are changing, due to representation of neuro diverse people by the media gradually becoming more positive, many employers are still wary of employing those who are on the autistic spectrum.

At Mullis & Peake we can help employers by making sure that everything from their recruitment practices to their policies and procedures offer protection for neurodiverse employees. We can also advise employees if they feel that they have been treated less favourably as a result of being neuro diverse.”

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