Tribunal claims relating to neurodiversity are on the rise. In fact, in 2024, neurodiversity was cited as a factor in 102 alleged discrimination cases, up 40% compared from 2020.
This suggests employers could be failing to understand their obligations towards their neurodivergent staff or are failing to appreciate the impact neurodivergence can have on individuals.
Is neurodiversity a disability?
Being neurodiverse does not automatically mean an employee has a disability but may do if the impact of their condition meets the criteria set out in the Equality Act 2010. Under the Act, to be classed as a disability, there must be a long-term physical or mental condition that has a substantial adverse effect on a person's ability to do day-to-day activities.
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If the impacts of an employee’s neurodiversity fall within the definition of a disability, the Act places the employer under a duty to make reasonable adjustments to the employee’s work and/or workplace in order to remove the disadvantage the employee is put at as a result of their disability. Any reasonable adjustments will be specific to the individual’s particular circumstances and should be discussed with the employee to ensure they are tailored to their needs.
Where can it go wrong?
There have been several recent cases that have seen employers on the wrong side of a successful claim where the tribunal have highlighted shortcomings in the employer’s approach to reasonable adjustments.
In James v The Venture (Wrexham) Ltd, the employee made a request for reasonable adjustments to help them manage their autism. Alongside comments such as asking the employee why they can’t be ‘ordinary’ or ‘perfect, and implying they were a ‘weirdo’, the adjustments were only partially implemented and described as a “pain in the a**e”. This led to the employee successfully claiming for failure to make reasonable adjustments.
Similarly, in Saunders v Peloton Interactive UK Ltd, the employee, who was also autistic, found the work environment ‘highly stimulating’ which caused a “sensory overload”. Although the employer made some efforts to make adjustments to the role, the tribunal found they were insufficient and again upheld a claim for failure to make reasonable adjustments.
These cases demonstrate a lack of understanding of the employee’s issues that arose because of their condition. Where an employee is clearly struggling with the requirements of their role, and the employer is aware, or should be aware on the evidence available, that their employee has a condition that would be a disability under the Equality Act 2010, then the duty to make reasonable adjustments is engaged. In these cases, the employers did not seek to fully understand the barriers these individuals faced in the workplace and as a result, failed to make sufficient adjustments for them.
What can you do to support neurodivergent employees?
If neurodivergent individuals are to thrive in the workplace, it’s essential that their working environment is reviewed and modified to accommodate their needs. The same as for any other disability, whether due to physical or psychological needs, the duty to make reasonable adjustments applies. Employers should consider providing training on disabilities and the duty to make reasonable adjustments to ensure they are dealt with in a fair and consistent manner across the organisation, and in doing so avoid the risk of disability discrimination.
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