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This week (13 – 19 March 2023) is Neurodiversity Celebration Week: a worldwide initiative that aims to challenge stereotypes and misconceptions about neurological differences. Below, we look at what neurodiversity is and the legal framework which provides protection for neurodiverse individuals at work. We also consider why taking an inclusive approach can benefit employers as well as employees.

What is neurodiversity?

“Neurodiversity” is a term that reflects the huge diversity of human brains (like the term “biodiversity” reflects the diversity of different species). “Neurodiversity” also refers to certain specific neurological conditions, such as Dyslexia, Dyspraxia, Dyscalculia, Attention Deficit Hyperactivity Disorder (ADHD), Autism and Tourette syndrome. Some people have overlapping neurodiverse traits, for example, they may be dyslexic and dyspraxic, or have both Autism and ADHD.  

It is important to remember that neurodiverse conditions are not the same as mental health conditions: unlike mental health conditions (such as depression or an eating disorder), neurodiverse conditions are not medical problems for which a person needs treatment.  Whereas mental health conditions may develop at any time, neurodiverse conditions are neurodevelopmental (meaning a person who has one will always have it).

Approximately 15 to 20% of the population are thought to have some form of neurodiversity, so it is vital that employers develop their understanding of this area to support their neurodiverse community.  Fostering an inclusive environment at work can reap significant benefits (for example with respect to recruitment, retention and staff productivity), and can also help minimise the risk of legal claims.

Legal protection for neurodiverse employees

The Equality Act 2010 includes key protections which often extend to neurodiverse employees (and workers and job applicants). Under the Act, “disability” is a protected characteristic and a person is defined as disabled if they have a “physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. The Act provides protection from direct discrimination, indirect discrimination, discrimination arising from disability, harassment and victimisation. It also places an obligation on employers to make reasonable adjustments to remove disadvantages linked to a person’s disability.

Often in the case of neurodiversity, an individual may have a “hidden” disability (i.e. it won’t necessarily be immediately obvious to others that the individual has a disability). Indeed, many neurodiverse individuals adopt techniques to enable them to better fit in with others – often referred to as “masking” –  which can make it difficult to identify that someone has a neurodiverse condition at all.

Not all neurodiverse people will meet the definition of disability, and many will not consider that they are disabled. It is always necessary to consider the effect of the particular neurodiverse condition on an individual employee on a case-by-case basis. In general terms, however, it is important for employers to understand that the definition of disability in the Equality Act will encompass many of those who are neurodiverse and, accordingly, it may be necessary to put reasonable adjustments in place for these employees. 

Reasonable adjustments to support neurodiverse employees

If an employee informs you that they have a neurodiverse condition, it is important to talk to them and discuss referring them for an occupational health appointment. An occupational health report can support an understanding of what adjustments may be needed.  

If you make adjustments, it is advisable to have regular check-ins with the employee to ensure that those adjustments remain suitable and explore whether they require any further support. Further occupational health assessments might be needed, especially when an employee’s condition is subject to fluctuation, for example, in times of stress or if their medication changes.  Coaching and mentoring can also be useful aids in supporting a neurodiverse employee.

Benefits of inclusivity for employers

Employers who actively embrace inclusivity in the workplace can reap significant benefits, for example:

  • Recruitment: given the prevalence of neurodiversity within the UK population, employers who do not take steps to support neurodiverse job applicants will inevitably miss out on talent. Promoting inclusivity can help an organisation to appear more attractive to potential recruits. Recruiting in a neurodiverse-friendly way can also help to reduce other types of hiring bias, resulting in greater equality in relation to other protected characteristics, such as race and sexual orientation. Taking a practical scenario, autistic people may struggle with some aspects of an interview (for example, the question “tell me about yourself” may be too open ended to easily engage with). A more neurodiverse-friendly approach would involve adopting an alternative style of question that is more specific about the information you are trying to discover (for example, “describe your current job and key responsibilities”). 
  • Retention: inclusivity can improve retention, which in turn can lead to financial and time savings from not having to recruit as often. Clearly, if neurodiverse individuals feel they are being supported, they will have less incentive to leave in search of somewhere better. 
  • Productivity: various studies have indicated that neurodiverse employees can be more productive than their neurotypical peers. The statistics have been especially striking where neurodiverse employees have been working on projects that they are particularly interested in (possibly due to the ability of employees with Autism and ADHD to hyperfocus when they are interested in a particular topic).

Benefits of inclusivity for all (not just neurodiverse!) employees

Neurodiverse individuals face challenges because the world of work is not designed for them. The aim of inclusivity at work, therefore, is to remove as many barriers as possible so that more people can join in and succeed.

What is needed for each neurodiverse employee may differ depending on their particular neurological difference and the things they struggle with or excel at, but the starting point should be an openness to enabling them. For example, actions as simple as providing written instructions after an online meeting, or allowing the use of noise cancelling headphones in a busy office space, could have a big impact (not only for neurodiverse individuals requiring support, but also for the workforce at large). It is important to be aware that while creating an inclusive culture at work requires thought and commitment, often the most effective adjustments are less expensive and more straightforward to implement than some might assume.

How we can help

Neurodiversity at work is one of the topics we will be discussing at our face-to-face Spring 2023 Employment Law Updates. For more details and to book a place, click here.

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on supporting neurodiverse members of staff. Make UK can provide a collection of micro-videos exploring particular neurodiverse conditions and how they can affect individuals at work. We can also provide more detailed training to staff, and specifically managers, to increase awareness about neurodiversity.  Please contact [email protected] for further information or click here

If you are not a Make UK subscriber, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected]

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