Neurodiversity and Disability Discrimination Law

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 Old stigmas and outdated views are gradually being dismantled and employers are beginning to understand that a pro-active and informed approach to neurodiversity can result in lasting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.

Posted By: Nathan Combes
Posted: 14 July 2022
2022 57 14 289 Neurodiversity and Disability Discrimination Law