Nathan Combes

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 Old stigmas and outdated views are gradually being dismantled and employers are beginning to understand that a pro-active and informed approach to neurodiversity can result in lasting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

• 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?

• 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.