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Neurodiversity in the workplace

Neurodiversity describes how there are a range of differences in how a person’s brain and cognition function, therefore recognising that we are all different in how our brain processes, learns, and behaves.

Neurodiversity encompasses both neurotypical and neurodivergent. Neurotypical means the person has typical neurological development or function whereas neurodivergent describes someone who has brain and cognitive function that is not considered ‘typical’.

This would include someone who has autism, dyslexia, ADHD and similar medical conditions.

Traditionally, employers would consider diversity generally in the context of race, sex, religion, or someone’s sexual orientation for instance, but now with greater information available on neurodivergent conditions such as those above examples, it is equally important to ensure that a neurodiverse workforce is also supported.

Doing so will be fundamental to the performance of the job, as explained below.

Why must it be supported in the workplace?

Accepting that not everyone processes information, learns, or behaves in the same way and taking action to embrace it, will positively impact both the business and the individual, for example:

You could have an employee who is underperforming in their role and it is attributed to dyslexia. By making adaptations to the role and/or equipment that they use, you can overturn the underperformance and enable them to perform their role to the required standards.

There could also be an employee with autism and who struggles with change. By adapting the way in which change is announced and communicated for this person will improve the chances of them being able to deal with the change and more likely to accept and understand.

You may also have an employee who is impulsive, hyperactive and becomes easily distracted arising out of their ADHD disorder. You can support these characteristics by adapting how their breaks are taken or take steps to simplify the way in which they do their work or provide written processes for them to follow and keep focused.

These are all measures that will support their neurodivergent and help them in achieving in the workplace.

These examples illustrate that by taking appropriate steps in supporting neurodiversity in the workplace, it can lead to positive and beneficial results not only to the employee but ultimately for the business.

Diversity is about recognising that everyone has many great things in common, as well as having many great differences that sets us apart from each other. Inclusion is about ensuring everybody has the same right to equal access to employment, equal pay and access to training and development, as well as not to be discriminated against.

Recognised neurodivergent conditions

Being inclusive of those with neurodivergent conditions means that it is important to have an awareness of some of the more common conditions. Line managers are not expected to become medical experts, but an employment tribunal would expect a reasonable employer to seek medical advice and opinion from a medical professional when managing an employee who does have a condition. Some of the more common and recognised neurodivergent conditions include (but this is not an exhaustive list):

  • Attention deficit disorder (ADHD) – a neurodevelopmental condition affecting the nervous system leading to episodes of hyperactivity, or the person becoming distracted, or impulse and can lead to difficulties in following instructions and completing tasks.
  • Autism – a neurological development condition, characterised by repetitive patterns of behaviour. Often, the person will experience challenges with change, other points of view, social communications.
  • Dyslexia – is a learning difficulty which causes problems with reading, writing and spelling.
  • Dyspraxia – a learning difficulty which affects coordination, movement, balance and organisation abilities and often includes poor hand eye coordination and spatial awareness.
  • Obsessive Compulsive Disorder (OCD) – a mental ill health condition where a person has obsessive thoughts and compulsive behaviours.
  • Tourette’s Syndrome – a neurological condition that features involuntary tics and uncontrollable sounds and movements. Those with this condition often experience other conditions such as anxiety.

Managing an employee with a neurodivergent condition

To support and create an equal, diverse and inclusive working environment for neurodiversity, how you manage an employee who has a neurodivergent condition is important. Not only is it the right thing to do morally, but legally it is important that a fair process is implemented to avoid claims of discrimination and/or unfair dismissal.

For example, these are the steps we would recommend all employers take to manage neurodiversity at work:

  1. Ensure your Equality, Diversity and Inclusion policy includes neurodiversity.
  2. Incorporate neurodiversity into your EDI training.
  3. Where someone has high absence levels arising from their condition, ensure you manage them in line with your normal absence management policies and seek medical advice. Where the condition is likely to be considered a disability, introduce reasonable adjustments so that they are not disadvantaged in the workplace by their condition.
  4. If you are addressing under performance issues, ensure the process considers the condition and considers whether the under performance is as a result of it. Medical advice is important in understanding more about the condition, but also whether the condition is likely to be deemed a disability, and therefore, what your legal obligations are. Introduce reasonable adjustments to the role, equipment, or the performance management process itself to ensure fairness and that the person is not disadvantaged and therefore discriminated against.
  5. Engage with your health and safety representative if needing to adopt new workplace equipment or adjustments to support a condition in the workplace.
  6. Consider using Access to Work, the government support for those who are in work or trying to get into work who have a physical or mental impairment. The process must be started by the employee but once they have done this, as an employer, you can work with the Access to Work contact to seek advice on recommended adjustments and equipment. Employers can also receive a contribution towards the cost of introducing any recommended equipment.

Legal Considerations

In some instances, the nature of the condition can qualify as a disability for the purpose of the Equality Act 2010. Under this legislation, a person has a disability if “they have a physical or mental impairment, and the impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities

The highlighted words above are important as it are these words that help us reach a view as to whether it is likely to be a disability i.e. this is what a tribunal judge will be ruling on, for example:

  1. First of all, is the medical condition either physical or mental?
  2. Secondly, how substantial are the effects of the condition on the person. It must be more than a minor effect and that it makes it more difficult for somebody to do something because of it.
  3. Thirdly, how long term is the health condition likely to be. Under the legislation, the requirement is that the condition must have affected/or likely affect the person for at least a year. Even if somebody has period lasting a few months of not having been affected by their health, it could still be deemed a disability especially if it can happen again and has a substantial affect.

For an employer to understand its legal obligations under the Equality Act 2010 seeking advice and guidance from a medical professional, which could be for example a GP, Consultant, Treating Specialist, is necessary.

If an employer concludes that the condition is likely to be deemed a disability, then it means that person is protected from discrimination and from unfair treatment because of it. It would also place a legal obligation on the employer to put in place reasonable adjustments to support the employee in managing their condition in the workplace.

Failing to implement reasonable adjustments, or discrimination on the grounds of their medical condition risk employment tribunal claims, for which the aware for discrimination is uncapped.

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