NEURODIVERSITY AT WORK

A guide to neurodiversity at work from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on discrimination arising from disability, please contact us as soon as possible.

This web page should be read in conjunction with the web pages DISCRIMINATION ARISING FROM DISABILITY and DUTY TO MAKE REASONABLE ADJUSTMENTS

What does neurodiversity mean?

Neurodiversity describes differences in brain function from person to person that affect daily mental functions.

Neurodiversity embraces differences in brain function and behaviour, rather than viewing that person as wrong or problematic.

For at least 20% of the UK’s adult population, these neurodiversity differences mean they are not seen as ‘neurotypical’ and may be diagnosed with neurological conditions.

What does neurodivergent mean?

Neurodivergent is a non-medical umbrella term that describes people with variation in their mental functions and a neurodiverse  conditions can include:

• autism spectrum disorder (ASD), including Asperger's syndrome
• attention-deficit disorder (ADD)
• attention-deficit/hyperactivity disorder (ADHD)
• dyspraxia
• dyslexia
• dyscalculia
• Tourette's syndrome
• obsessive-compulsive disorder (OCD)

An employee can suffer from more than one neurodiverse condition:

• approximately 1 in 2 people with ADHD have dyslexia
• approximately 1 in 2 people with ADHD have dyspraxia
• 9 in 10 people with Tourette's have ADHD
• 2 in 3 people with ADHD have ASD traits, and people with ADHD are 8-fold more likely to meet full criteria for an ASD diagnosis.

Neurodivergent was coined by the neurodiversity movement as an opposite to neurotypical.

The terms neurodivergent and neurodivergence are now used to describe those whose neurological conditions mean they do not consider themselves to be neurotypical.

Nearly half (48%) of neurodivergent employees do not feel recruitment processes are fair, with many reporting bias, negative attitudes and processes designed based on neurotypical assumptions.

It is estimated that up to a fifth of the world’s population is neurodivergent.

Many neurodivergent employees conceal or camouflage their conditions at work and in social situations to appear neurotypical, which is referred to as 'masking'.

Neurodivergent masking is the act of hiding neurodiverse traits that are a part of their neurodivergence in order to fit into society. It can include:

• learning neurotypical attributes
• copying behaviours at work and in social settings
• hiding behaviours that other people may perceive as weird or not accept.

Neurodivergent masking is a form of social survival displayed in different ways depending on the behaviours the employee wants to conceal.

Who is neurotypical?

Neurotypicality is used to describe people whose brain functions, ways of processing information and behaviours are seen to be standard.

The label is used by neurodivergent people and the neurodiversity community to refer to anyone who does not have a neurological condition.

Are there benefits of employing neurodivergent people?

Employing neurodivergent people can bring enormous benefits to a business, as neurodivergent workers can contribute their talents, skills, and perspectives in ways that can directly benefit an employer's mission and help support productivity and performance, as they often bring with them innovation and creativity, technical, design, and creative strengths.

Neurodivergent employees are good at problem solving, can often have high levels of concentration, an ability to detect errors, have strong recall of information and detailed factual knowledge, and can be extremely reliable and persistent, however, this relies on an employer collaboratively working with neurodivergent employees gaining knowledge about them and finding a means to harness their potential.

Are neurodivergent employees protected at work?

Neurodivergent conditions are invisible conditions. This can lead to barriers and needs of employees being overlooked.

Neurological science is still now in its early days, and in a society that is slow to educate people about neurological diversity, myths and stereotypes have developed which often overlook individuality and can lead to misunderstanding, wrong perceptions being formed, and to needs of an employee not being met. This can often make it much harder for an employee to disclose their condition, which makes it harder for them to get the right type of support at work.

Neurodivergent employees are generally categorised as having a disability within the meaning of section 6 of the Equality Act 2010, which is defined as:

• a person who has 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.

For more information about disability, please see the web page discrimination - protected characteristics

If neurodivergent employees fall within the definition of 'disability' (above) then employers have a statutory duty to make ‘reasonable’ adjustments to those employees’ working conditions in accordance with section 20 of the Equality Act 2010.

Examples of reasonable adjustments for neurodivergent employees could be:

• providing physical aids (blue lights, overlays)
• providing noise-cancelling headphones to those with sensory sensitivities
• providing dictation software
• building spaces for those who have spatial sensitivities
• allowing more time to digest information
• allowing more time to re-read and repeat tasks
• allowing recordings if it helps process and/or remember information
• opportunity for structured or frequent breaks
• provide flexibility on the ways things are done and not be too rigid.

Neurodivergent employees may want to apply for flexible working, as maintaining concentration and productivity while working long hours could be a problem. For example, an estimated 40-80% of adults with ADHD, suffer from chronic sleep problems, resulting in work-related stress and anxiety.

For more information on flexible working, please see the web page flexible working

Access to Work can provide financial support to help neurodivergent employees in the workplace.

Another way of supporting neurodivergent employees is to provide a Reasonable Adjustments Passport. A Reasonable Adjustments Passport is a document that outlines the specific needs and adjustments of a neurodivergent employee in the workplace. It can be used as a tool for both employees and employers to ensure that the employee is able to perform at their best.

For more information about disability, please see the web page duty to make reasonable adjustments

What if an employer fails to support a neurodivergent employee at work?

If an employer (or a work colleague) treats an employee badly because of their neurodiverse condition or ignores their neurodiverse condition by failing to provide support, this may impact the employee's mental health. In such circumstances, an employee may wish to leave their employment with an exit package or bring an employment tribunal claim.

We strongly advise that appropriate legal advice is taken for issues relating to neurodiversity at work.

For more information, please see web page employment tribunal claims

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for advice on neurodiversity at work?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years, many of which involved disability discrimination.

As specialist employment lawyers, our clients' interests are paramount to us. 

We ensure that all our clients receive the best advice possible.

We will advise on disability discrimination and any subsequent employment tribunal claim.

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