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Many employers have become increasingly adept over the years at understanding the difficulties that can be encountered by disabled employees and the additional measures that may need to be put in place to compensate for those difficulties and enable the disabled employee to participate effectively in the workplace.

Thanks in part to increasing public awareness generally and the gradual erosion of prejudice and misunderstanding, conditions which were previously glossed over and ignored are now being discussed more openly. Old stigmas and outdated views are gradually being dismantled and employers are beginning to understand that a pro-active and informed approach to neurodiversity can result in lasting and positive outcomes.

What is neurodiversity?

In its simplest terms, neurodiversity refers to a difference in brain processing which impacts upon an individual’s learning, sensory processing and social interaction.

Current research suggests that as much as 15% of the general population are neurodivergent.

Some of the more commonly encountered neurodiverse conditions include dyslexia, dyscalculia, autism and ADHD.

Are all neurodivergent employees disabled?

The short answer is no. Neurodivergence exists on a spectrum. Accordingly, there are many individuals with a neurodivergent condition who would not class themselves as being disabled.

The key legislation for employment law purposes is the Equality Act 2010 ("EqA"). The EqA confirms that the key test for establishing whether an individual will be considered as being disabled (for the purposes of the Act) is as follows:

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 
  • Is that effect substantial?
  • Is that effect long-term?Accordingly, each case is assessed on its own merits.
I’ve heard neurodiversity being referred to as a "hidden" or "invisible" disability what does that mean?

That’s a good question. These terms are often used by lawyers and tribunals in cases involving neurodivergent employees because unlike some of the more obvious physical and mental impairments, neurodiverse conditions may not be self-evident, Additionally, neurodiverse conditions sometimes only impact or become evident in particular situations, or in relation to certain types of duties, requests or responsibilities.

What legal obligations does the EqA create for my organisation in respect of neurodivergent employees?

The EqA confirms that organisations must:
  • not treat employee less favourably because of their neurodiversity (direct discrimination);
  • not treat employees unfavourably for a reason arising from their neurodiversity (unfavourable treatment) unless that treatment can be justified; 
  • not subject the neurodivergent employee to unlawful harassment, unjustified indirect discrimination or victimisation; and
  • pro-actively explore whether reasonable adjustments can be made.

Are there any particular risks that we should be aware of?

Yes, there are. There’s a legal concept in discrimination law known as "constructive knowledge".  Put simply, if an employer is not fixed with actual knowledge of the disability, liability can still arise where there were evidence and clues which should have prompted it to make further enquires.

Additionally, when assessing a neurodiverse condition in order to decide whether it has a "substantial and long-term effect on an individual’s day-to-day activities", employers must ignore any medication, coping mechanisms (such as counselling or masking) or treatment interventions which may mask the true effect of the neurodivergent condition.

Our organisation wants to become better at understanding and handling neurodiversity. What can we do?

Your organisation could consider adopting one or more of the following steps:
  • Try to avoid "medicalising" the issue. Focus instead on trying to understand how a neurodivergent employee’s condition impacts upon them and then work with them to try and identify what adjustments can be made and whether any additional support can be provided.
  • Enquire sensitively (remember there’s still a lot of stigma attached to neurodiversity) and investigate fully. Whenever possible talk with both the employee and any relevant experts. Invaluable information and support can also be obtained from specialist or charitable organisations. 
  • Avoid the trap of focusing solely on the individual employee’s areas of difficulty; consider also which tasks play to their strengths. This might lead on to redesigning a job role or adopting a more flexible and "person centred" approach.
  • Consider whether any internal management process needs to be amended in order to minimise any adverse impact upon the employee and to maximise the prospect of active, responsive and meaningful participation.
Please contact us if you’d like more information about the issues raised in this article and/or or to find out more about the various Employment Law and HR related policies, procedures, guidance and workplace diversity training that we provide.

Disclaimer: the information set out above does not constitute legal advice and it is provided for general information purposes only. No warranty, whether express or implied is given and neither the author or Legal Studio shall be liable for any technical, editorial, typographical or other errors or omissions within the information provided.
 
 
2022 57 14
Nathan Combes
On 6 April 2022, the law changed in relation to applications for divorce. It is now possible to start divorce proceedings simply on the basis that the marriage has broken down. This is a massive shift from the old system and has been much anticipated by family lawyers and clients.
 
Today, I filed my first divorce application on behalf of a client under the new “no fault“ divorce rules. It felt strange to only have to indicate that the reason for the application was irretrievable breakdown of marriage. Under the “old” divorce law, a couple who had been separated for less than 2 years could only commence divorce by relying on a “fault” ground - either unreasonable behaviour or adultery. There were “no fault“ grounds under the old law, but this required a couple to be separated for at least 2 years and, if separated for less than 5 years, to be reliant upon the other spouse consenting to the divorce. This meant a couple, who maybe had been separated for a few months (as my client in today’s application) would either have to blame the other spouse for the breakdown of the marriage or wait 2 years for the 2 years separation with consent ground. Even if it was the case that neither spouse was in a rush to re-marry, the fact of having to wait for 2 years to commence the divorce application often meant they felt unable to fully move on with their lives. They were tied to each other financially, because the court cannot give effect to financial clean break until decree nisi stage of the divorce proceedings. A pension sharing order could not be made until the consent order was filed and could not be implemented until decree absolute. The couple remained tied to each other financially, even where they had separated amicably.
 
This led me to think, does this mean couples will separate more readily or that it will be “easier” to get a divorce? Certainly that is how it has been portrayed in the press, but in my experience (20 years as a family solicitor) if a couple wished to separate formally and finalise their finances, they would quite often resort to the “unreasonable behaviour” ground. Even if they kept the allegations mild and tried to agree them with each other in advance, it was still difficult for the respondent spouse to find themselves unable to put their side of a marital breakdown across in the divorce application. And even in the most amicable cases, this could lead to ill-feeling. Where there are young children involved and the couple remain in each other’s lives for a significant period of time, an unreasonable behaviour divorce petition could leave a sour taste.
 
The new system is, in my view, much kinder in its approach - it even allows for a joint application to be made (alongside the option of a sole application). Already, my experience of this one divorce application I have filed, it has a different feeling to it. I got the impression that the couple had felt much more comfortable approaching matters on a “no fault” basis. I have a number of clients who have waited for the new law to come into effect before looking to commence the divorce application. Over time, we will see whether there is an increase in divorce rates, but I cannot see that being the case. What I can see is it leading to more amicable separations.

For more information contact Angela Lally on 0113 247 3804 or email at angela.lally@legalstudio.co.uk
2022 39 21
Angela Lally
Restrictive covenant clauses within employment contracts restrain how employees can act in the future. Ordinarily, this relates to dealing with clients of their employer, or working for a competitor following the termination of their employment. To justify a restraint of trade clause it must be proved that the clause is reasonable and in the interests of the parties. Generally, the courts will not enforce provisions relating to mere competition. It must be established that there is a legitimate interest which requires protection – for example, confidential documents, lists of clients or specific details within contracts.
 
Once a legitimate interest is identified, the restrictive covenant in question needs to be no more extensive than is necessary to protect that interest – i.e. limited in scope and time. The courts are much less sympathetic to restraints within employment contracts as opposed to in commercial contracts as it is understood that usually employees are in a weaker bargaining position than employers. The enforceability of restrictive covenants is highly fact specific and will depend upon the wording of the clause.
 
Let’s look at previous decisions relating to restrictive covenants and their enforceability and reasonableness.
 
Garden Leave
 
In one case the High Court was asked to consider whether a stockbroker could be placed on garden leave for the entirety of his 12-month notice period. The court considered that the provision was reasonably necessary to protect the company’s legitimate business interests. The stockbroker had signed a revised contract which included the clause and also increased his salary from £40,000 to £120,000.
 
In a further case relating to garden leave, an employer was entitled to place three employees on garden leave during the period of their notice period despite there being no garden leave clause within their employment contracts. This was due to the fact that the employees had breached their contracts and there was no onus upon the employer to provide work to the employees due to the breaches.
 
Non-Compete
 
A financial adviser had a restrictive covenant that prevented him from providing any services for a period of 9 months following the termination of his employment. However, this was ruled invalid as the adviser had been working with a client base in one particular region of the country. Furthermore, the length of the covenant was deemed too long as he had left his employment after only six months.
 
A six month non-compete clause was deemed invalid for a junior employee as the considered it was inappropriate for someone of that level. The clause was also deemed unenforceable as the scope was too wide. The clause sought to restrain the employee from being engaged in work of a similar nature to that of the employer to the employer’s questions – it was deemed too wide as it concerned all customers not solely those of which the employee had knowledge of or dealt with previously.
 
For more information, please contact Sean McHale on 0113 247 3800 or by emailing sean.mchale@legalstudio.co.uk
 
2022 48 04
Sean McHale