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Advice For Employers & HR Professionals

Disability discrimination claims on the rise

Time to get neuro-savvy.

According to recent statistics, the number of disability discrimination claims is rising at a phenomenal rate and some 8 times faster than other types of Tribunal claim.  In this article we try to unpick some of the reasons why this might be the case.

The Tribunal statistics mirrors our own experience, as we’re certainly advising on an increased number of disputes with a mental ill-health element to them.  Workers are now facing increased pressures which is impacting on their mental health and there’s a growing awareness amongst employers and employees of how mental health needs to be managed effectively, inside and outside of work.

But it’s not just all about mental health, there’s definitely a ‘hidden-disability’ factor in these statistics.  As followers and readers of our newsletter will know, at the turn of the year we commenced a year-long campaign to raise awareness around hidden disabilities, such as Autism, Dyspraxia and ADHD, and help local businesses become more neuro-savvy both in terms of their recruitment and also the retention of staff.  According to the National Autistic Society there are around 700,000 people on the autistic spectrum in the UK alone, some of whom are in work but very many are not and keen to find employers who will recognise the positive impact that being neuro-divergent can bring to their organisation.

One of the difficulties facing employers is that workers who are neuro-divergent do not always disclose their conditions, and many more still do not know that they have a condition. Creating a workplace culture where employees feel able (and safe) to make a disclosure is probably the most tricky piece of the jigsaw.  Often, it is only when the relationship sours when the worker decides to introduce the possibility that their conduct / performance is somehow related to one of these conditions, diagnosed or not, and that tends to be the juncture when the employer trips up.  A focus of our neurodiversity campaign, has been to train line managers to know what they should, and should not do, at the point of disclosure so that they can proceed with confidence and, importantly, not fall down any bear traps which may land them in hot water and, eventually, onto the Tribunal stand.

What best practice tips can we take from case law?

  • Conditions like Autism, Aspergers, ADHD, Dyspraxia, even if mild or non-severe, are likely to qualify as disabilities under the Equality Act 2010
  • Reasonable adjustments are likely to be required, but will often be inexpensive or free (e.g. additional managerial support; fixed desk in an open-plan work space)
  • Some creative-thinking and open, regular dialogue with the employee about the adjustments that need to be made for their individual condition will be essential
  • Neurodiversity should be a feature of Equal Opportunities policies and procedures and managers should cover neurodivergence as part of their diversity and inclusion training
  • Prior to commencing a disciplinary or capability procedure, pause and consider whether a known or hidden disability could be the cause of the underlying conduct or performance issue and, if it is, or you think it could be, take a (slightly) different course to the one you intended

If you’re interested in finding out more about how your business can become more neuro-savvy, come along to our Neurodiversity Masterclass next month – for more details click here.

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