The number of people being diagnosed with neurodiverse conditions is rapidly rising. ACAS (the Advisory, Conciliation and Arbitration Service), have recently published advice to help employers understand their obligations and create inclusive, supportive organisations where differences are celebrated and can be used to benefit business. Neurodiversity and the Equality Act 2010 A number of neurodiverse conditions such as ADHD (attention deficit hyperactivity disorder), autism, dyslexia and dyspraxia, can be classed as a disability under the Equality Act 2010. Some of the by-products of these conditions such as hyperfocus, creativity, innovative thinking, visual reasoning and strength in processing detail and recognising patterns, can be hugely valuable for organisations. However, there are other aspects of these conditions that some employers find harder to understand and manage. For example, mainstream interview techniques where social interaction and conversation dialogue is often given so much weight, or expectations surrounding time management and organisation. These can be problematic for neurodiverse people meaning they are unable to fulfil their potential or showcase the skills they can bring. Making workplaces more inclusive The purpose of the new guidance is to help employers take practical steps to make workplaces more accessible. These include: Inclusive hiring practices – ensuring recruitment processes accommodate different cognitive styles. Reasonable adjustments – providing tailored support such as flexible work arrangements and assistive technology. Workplace awareness – educating employers and colleagues about neurodivergence to reduce stigma and increase understanding. Do you need a diagnosis? The guidance provides a lot of useful information about whether there is a requirement to have a diagnosis of a neurodiverse condition and our Employment team have advised a number of clients recently on this very issue. In one case, we acted for an employee who was diagnosed with autism and ADHD after her dismissal. She argued that the employer should have reasonably known that she had these disabilities and discriminated against her when they relied on communication problems as a ground to fail her probationary period. They argued that they couldn’t have possibly been aware of her conditions, when she didn’t know herself. Legal perspective on disability and disclosure It sounds like a convincing point, but in reality, an employee does not need a diagnosis to be considered disabled under the Equality Act 2010. The test is to show that the employer should have reasonably known that an individual is disabled. Companies have an obligation to do all they reasonably can to find out whether a person has a disability. An employer might ask an employee for proof that they have a condition, such as a psychologist’s report or NHS letter confirming a diagnosis. However, employees are not legally required to provide this, may not even have any proof, or might have their own reasons for not sharing a diagnosis. This can make it a very difficult field to navigate and is the reason why we have seen an increasing number of clients approach us for advice. Practically speaking, a good employer should be doing all they can to always provide support, whether or not an individual is neurodiverse or has any other disability. An employer is under a duty to make reasonable adjustments in the event that an individual is disabled, but as a matter of good practice employers should be taking all reasonable steps to reduce barriers and constraints which prevent individuals from thriving regardless of a diagnosis. Join our upcoming webinar Our employment team will be hosting a webinar to discuss neurodiversity in the workplace. They will cover how it can impact performance, conduct and capability and the steps employers can take to make their organisation neuro-inclusive, therefore benefitting from the wider range of skills and experience a diverse workforce can bring to a firm. If you would be interested in attending or receiving a recording of the event, please contact a member of our employment team on employmentemail@morrlaw.com where we can provide you with further information. How Morr & Co can help? If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Employment team on 0333 038 9100 or email info@morrlaw.com and a member of our expert team will get back to you. Disclaimer Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position. Authored by Elizabeth Maxwell Associate Solicitor Message Tags Insights Corporate Insights On this page Contact our team today to find out more Get in touch
