Neurodiversity refers to how the brain interprets information. 'Neurotypical' refers to the typical brain function and processes individuals possess and expect in society. 'Neurodivergent' means that the brain functions and processes information differently to this expectation.
Neurodivergence encompasses:
- Autism
- ADHD
- Dyslexia
- Dyscalculia
- Dyspraxia
- Dysgraphia
- Tourette Syndrome
Neurodiversity and disability discrimination
Under the Equality Act 2010 (the 'Act'), being neurodivergent will often amount to a disability. The Act defines a 'disability' as:
'a physical or mental impairment and the impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.'
A neurodiverse employee will have an ongoing condition, which will often substantially affect their day-to-day activities.
An employee does not need to be formally diagnosed with a neurodivergence to fulfil the criteria for 'disability' under the Act.
If a neurodivergent employee is deemed disabled under the Act, it will be unlawful for an employer to discriminate against them. This includes:-
- Direct discrimination
- Discrimination arising from disability
- Indirect discrimination
- Harassment
- Victimisation
- Failure to make reasonable adjustments
An employer is under a duty to make reasonable adjustments where it knows, or ought reasonable to know, that an individual is disabled and likely to be placed at a substantial disadvantage because of their disability. Therefore, it is prudent for employers to take reasonable steps to find out whether job applicants or employees have a disability.
A job applicant or employee who succeeds in a disability discrimination claim will usually be awarded compensation as a remedy. Employers should be aware that there is no upper limit on compensation.
Common characteristics and reasonable adjustments
Neurodivergence can manifest in a myriad of ways, so it is essential to be clear on each individual's needs.
We set out below a simple meaning, some common characteristics and potential reasonable adjustments that may be relevant to each neurodivergent condition:-
Autism spectrum disorder
What is autism?
Autism impacts a person's perception of the world and can inhibit their understanding of social cues and their interaction with others. An autistic person may struggle to express their emotions and interpret other peoples.
Typical characteristics of autism
- Good concentration, reliable, persistent and a strong memory
- Intense interest in specific topics such as numbers, details or facts
- Making little or inconsistent eye contact
- Struggle understanding another person's point of view or being unable to predict or understand other people's emotions
- Extreme anxiety in social situations or when facing change
- Under or over sensitivity to sensory input (i.e. lights, sound and temperature)
Potential reasonable adjustments
Job adverts should be concise and in plain English, listing essential skills only and avoiding any complicated designs/layouts.
For job applicants, employers should leave a space for applicants to explain any support or adjustment they may need in their interview process.
In interviews, employers should clearly:
- Set out the full interview process to the candidate
- Consider providing interview questions to the candidate slightly in advance
- Allow the candidate to take notes during the interview and
- Where feasible, try to avoid general/open-ended questions.
Adjustments in the workplace may include providing:
- Clear and structured training and schedules/timetables
- Concise instructions for tasks, explaining exactly how a task should be carried out and giving reasonable time limits
- Regular one-to-one meetings to discuss performance and provide sensitive but direct feedback
Recent case law
In Duncan v Fujitsu Services Ltd, the employment tribunal determined that an employer failed to make reasonable adjustments for an autistic employee who had difficulties with oral communication. In these circumstances, it was considered that it would have been a reasonable adjustment allow the employee alternative means to phoning in and verbally confirming sickness.
Attention deficit hyperactivity disorder (ADHD)
What is ADHD?
ADHD impacts a person's ability to focus and maintain attention. Symptoms typically include hyperactivity and impulsivity.
Typical characteristics of ADHD
- Being spontaneous and flexible
- Have trouble concentrating
- High energy/restlessness
- Act on impulse
- Overlooking details or making seemingly careless mistakes
- Have difficulty organising tasks, managing time and meeting deadlines
Potential reasonable adjustments
Employers may make efforts to ensure the employee has a quiet area to work in to help maintain focus and remove distractions or perhaps to allow for more regular working from home.
Employers may also allow for more regular breaks where an individual with ADHD has short milestones throughout the day to work towards.
Dyslexia
What is dyslexia?
Dyslexia typically affects the way that an individual processes and remembers information which primarily impacts an individual's reading and writing skills, but can also influence sight, hearing and comprehension.
Typical characteristics of dyslexia
- Strong communication and imagination
- Confusing appointment dates and times
- Difficulty processing and remembering information
- Issues with spelling and concisely outlining points
- Poor short-term memory
Potential reasonable adjustments
Job applicants and employees with dyslexia should be allowed sufficient time to read and complete tasks and employers should be cognisant of setting urgent or unduly deadlines.
When giving instructions to a job applicant or employee with dyslexia, it may be advisable to provide both written and verbal instruction.
The employer may consider providing a variety of work (i.e. a mixture of tasks to complete on the computer and off) to the employee.
Dyscalculia, dyspraxia and dysgraphia
Dyscalculia
What is it?
- Difficulty to understand and evaluate number-based information
Common characteristics
- Mixing up the order of numbers
- Difficulty evaluating numerical information (e.g. prices)
- Trouble perceiving time
Potential reasonable adjustments
Employers may want to consider spelling out numbers and allow additional time for employees with dyscalculia to complete numerical tasks.
Employers should also provide schedules, set alarms and use calendars. It may also benefit to provide the employee with a digital clock.
Dyspraxia
What is it?
- Difficulty with movement and co-ordination
Common characteristics
- Balance or movement issues
- Difficulty writing and/or typing
- Abnormal posture
Dysgraphia
What is it?
- Difficulty writing coherently
Common characteristics
- Trouble with the actual act of writing or spacing words
- Difficulty translating thoughts into written words
Potential reasonable adjustments for dyspraxia and dysgraphia
Employers should consider allowing additional breaks to be given to employees to help productivity and allow extra time for tasks to be completed.
Employers should consider alternative methods of producing work (i.e. instead of typing something, the employee could be given the option to dictate it).
Employers should allow the employee more time to draft documents and consider alternative methods of presentation (e.g. graphs).
Recent case law
In AECOM Ltd v Mallon [2023] EAT 104, the employment tribunal held that the employer did not make any reasonable adjustments despite having knowledge of the job applicant's dyspraxia making it difficult to fill out an online form. Instead, the employer should have allowed the job applicant to complete the form verbally, over the phone.
Tourette Syndrome?
What is Tourette Syndrome?
Tourette Syndrome is where an individual makes involuntary sounds or movements known as 'tics'.
Common characteristics of Tourette Syndrome
Physical tics:
- Blinking
- Eye rolling
- Shoulder shrugging
- Jerking of the head of limbs
Vocal tics:
- Throat clearing
- Saying random words and phrases
- Swearing
Potential reasonable adjustments
Employers should ask whether the job applicant or employee would like to work in a separate and quieter area so that they can tic in private without judgment or fear of distracting other people.
Employers should also try and create a calm and relaxed environment as tics tend to worsen when anxiety is heightened.
Employers should also offer the option for Tourette Syndrome to be explained to clients and/or colleagues to help awareness and for clients and colleagues not to be shocked or concerned if the employee tics.
Conclusion
ACAS guidance advises employers to make reasonable adjustments that are tailored and specific to each individual job applicant or employee. This requires employers to make reasonable enquiries to understand the needs of individual in the workplace.
Alongside employers making reasonable adjustments for neurodivergent job applicants and employees, employers should ensure that there is appropriate knowledge and training sessions for neurotypical all workers and employees. After all, the entire workforce needs to work together to ensure any reasonable adjustments function properly and effectively.
