Neurodiversity Celebration Week: understanding your employment law obligations and how you can better support neurodivergent employees
Today marks the start of Neurodiversity Celebration Week, a worldwide initiative that challenges stereotypes and misconceptions about neurological differences. This week provides an ideal opportunity for employers to understand their legal obligations when it comes to supporting their neurodivergent staff.
It is estimated that around 1 in 7 people are neurodivergent. With such a large portion of working adults identifying as neurodivergent, it demonstrates the need for employers to understand the duty of care they owe to this category of individuals.
In this article, we outline your obligations as an employer, looking at the legal framework as well as new ACAS guidance that has recently been published in order to reduce your risk of claim and ensure better support for neurodivergent staff in the workplace.
Neurodiversity and the Equality Act 2010
The key legislation that governs the right for all employees to be treated equally in the workplace is the Equality Act 2010. Although many neurodivergent individuals would not regard themselves as disabled, it may well be that they fall within the definition of disabled under the Equality Act.
Under the Act, a disability is defined as:
“a physical or mental impairment that has a substantial and long-term effect on a person’s ability to carry out normal day-to-day tasks”
Neurodivergent workers therefore can, and have been found, to fall within the meaning of this definition. As a result, it is important employers are making reasonable adjustments to accommodate an employee’s neurodivergence when it is having an adverse effect on their work and role. Employers have a legal duty to do this.
What constitutes reasonable is fact-specific and will depend on the circumstances of the situation however, Acas has recently provided guidelines to help employers navigating this sensitive area.
Acas Guidelines
New Acas guidance provides a framework for employers to better understand and support neurodivergent employees. When it comes to the practical steps employers need to take, the Acas guidance provides invaluable hints and tips, including potential reasonable adjustments which are often free or of little cost:
Your obligations as an employer
Employers are required to implement reasonable adjustments for their neurodivergent staff to reduce or remove altogether any substantial disadvantages that flow from their disability. This is by far the trickiest aspect of the Equality Act for employers to comply with in practice.
A good case in point, is the case of Wright v Cardinal Newman Catholic School. Here the claimant succeeded in his discrimination claim after the court concluded the behaviours which led ultimately to him being dismissed were a consequence of his autism. Mr Wright provided an impact statement describing the effect of his disability on his behaviour including rigidity of thought, obsessional traits, social skills and increased anxiety / stress. The School was critiqued for failing to make allowances for Mr Wright’s neurodiversity, instead choosing to regard him as a “persistent complainer”.
This case highlights the importance for employers to recognise (and educate their line managers as to) behaviours that may signpost neurodivergence. It is not enough to make reasonable adjustments in response to an employee’s request; employers must consider an employee’s neurodivergence in all forms of decision making and, where relevant and reasonable to do so, make necessary adjustments where is it reasonable to do so.
Mis-labelling the claimant as a trouble causer and not being open to the possibility of his behaviour being linked to disability-related factors, cost the school which was ordered to pay sizeable damages in the order of £850,000. This is an extreme example, and not all cases will result in significant awards like this, but to avoid costly legal claims, it is therefore essential employers train their staff and foster a culture of inclusivity to avoid team members negatively misinterpreting a colleague’s neurodivergent traits.
Practical Steps
Some of the key steps recommended by Acas in their guidance include:
- Training and supporting managers: making sure managers have the skills and knowledge to implement reasonable adjustments in their team.
- Raising awareness: organising awareness days and campaigns on neurodiversity can help staff recognise neurodivergent traits, fostering a culture of understanding.
- Mandatory Training: organisations should include neurodiversity in their mandatory training to set out a commitment to being inclusive and provide a supportive environment.
- Reasonable adjustments: make it clear that neurodivergent employees can ask for reasonable adjustments and provide the opportunity for them to do so. Reasonable adjustments could vary from providing more flexible working hours to having a quiet place anyone can use. Do not take a one size fits all approach.
- Neurodiversity policy: a neurodiversity policy can include an organisation’s commitment to their legal obligations, the available support and recommended procedures neurodivergent employees can follow. A policy ensures there are consistent standards across the organisation.
Key takeaways
Neurodiversity Celebration Week provides a great opportunity for employers to raise awareness in the workplace on neurological differences and celebrate the positive impact and cultural richness that employing individuals, whose brains work differently to neurotypical employees, can bring to the workplace.
However, an employer’s duty of care to their neurodivergent staff is not limited to one week. This is an ongoing journey, and organisations must be sure they are taking steps to create a neuroinclusive environment throughout the year to attract and retain talent and limit the exposure to legal claims.
At Torque Law, we are experienced in drafting workplace policies and delivering workplace training. If you would like assistance or support in implementing a neurodiversity policy, or any other workplace training please do not hesitate to contact us on 01904 437680.