In our article last week, we explored the nature of neurodiversity, alongside reports which suggest support for those who are neurodivergent is still wanting across the UK. We also outlined some of the reasons why this is a crucial area of consideration for businesses.

In the UK, obligations on businesses go further than just supporting job applicants and employees with disabilities. Consumers are also protected from disability discrimination under the Goods and Services section of the Equality Act 2010. This week, we look at how to best support neurodiverse service-users, both in terms of legal obligations, but also in terms of recommended best practices and recent trends that are emerging.

Statutory duty to make reasonable adjustments

Under the Equality Act, service-users are protected against all types of discrimination including direct and indirect discrimination as well as harassment. In the context of neurodiversity, however, an important aspect for a business is complying with the duty to make reasonable adjustments.    This duty arises where a provision, criterion or practice, or a physical feature, or the lack of an auxiliary aid or service, puts disabled people at a substantial disadvantage compared with non-disabled people.

By way of example, if a company’s policy is that all customer complaints must be made in writing, this policy may place someone with, for example, dyslexia at a substantial disadvantage in making a complaint. Here, amending the policy to permit disabled people and others who cannot use a written complaints procedure to make their complaint by telephone is likely to be a reasonable adjustment to make.

The EHRC Statutory Code of Practice on discrimination in services, which provides guidance on the detail of the Equality Act, includes various important points which companies should take into account when assessing how to comply with their reasonable adjustment duty.  In particular, the Code specifies that –

• The duty requires service providers to take positive steps to ensure that disabled people can access services. This goes beyond simply avoiding discrimination.
• The duty is anticipatory so it requires consideration of, and action in relation to, barriers prior to an individual disabled person seeking to use the business’s service. Service providers should anticipate the requirements of disabled people and the adjustments that may have to be made for them.
• The duty applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers or service-users.
• Service providers are not expected to anticipate the needs of every individual who may use their service, but they must think about and take reasonable steps to overcome barriers that may impede people with different kinds of disability.

As is clear from these elements of the EHRC Code, compliance with the reasonable adjustments duty cannot be left to chance and businesses need to take proactive steps to fulfil their regulatory obligation.    Failing to do so risks not only the potential for legal action against the business, but also adverse publicity and reputational damage.

The wider case for accommodating neurodiverse service-users

As we highlighted in our article last week, not all neurodiverse service-users will meet the definition of disability within the Equality Act and therefore benefit from the reasonable adjustments duty.  However, determining who is or is not covered is not a worthwhile exercise for a business to pursue. A neurodiverse person who doesn’t fall within the ambit of the legislation is still likely to benefit from adjustments, and it will usually make sense for a business to make it easier for everyone to engage with their products or services.

Aside from legal obligations, there are sound commercial reasons why businesses should consider customer neurodiversity within the business plans for their products and services. Around 15% to 20% of people are neurodiverse.

Adopting a proactive and neuro-inclusive approach allows companies to both target new audiences and to improve engagement with existing neurodiverse customers, strengthening the brand and boosting the bottom line.

Conversely, failing to consider neurodiversity risks negatively impacting customer experience or alienating part of the market and, consequently, limiting the company’s success. As things stand, there are, undoubtedly, significant opportunities being missed by businesses who aren’t communicating with and accommodating neurodiverse audiences.

What are businesses already doing for neurodiverse customers?

A recent survey reported that 78% of people with disabilities noted “extreme difficulty” in accessing shops. Whilst, historically, retailers may have focused on removing barriers to access for those with physical disabilities, more and more retailers are now focusing on those with neurodivergent needs – considering what can be done to improve their shopping experience. For example, stores such as Superdrug, Sainsbury’s and Tesco have introduced in-store “quiet hours” for the benefit of neurodivergent customers, so they can shop with less sensory stimulation.

With the rise in the provision of online goods and services in recent years and considering the fact that neurodiverse conditions often relate to processing of information, e-commerce websites are a key point of contact for consumers that may (or may not) be offering customers what they need.

Those in the public sector are subject to website compliance regulations, following legislation introduced in 2018 which requires all public sector websites and mobile apps to meet specified accessibility standards by June 2021. Websites and apps had to be made ‘perceivable, operable, understandable, and robust’ to meet the required accessibility standard, and would meet these requirements by satisfying the European accessibility standard EN 301 549 and the Web Content Accessibility Guidelines (WCAG) 2.1 to level AA.

Those in the private sector have not been held to such a deadline for meeting the WCAG 2.1 accessibility level AA. However, the WCAG principles do apply to the private sector and are a useful indicator and tool for businesses seeking to create accessible websites. Moreover, there is a risk that service providers are failing to meet their obligations to make reasonable adjustments where websites are inaccessible for those with a disability.  Although the Act does not explicitly address web resources, the EHRC Code indicates that websites may constitute a service where, for example, they are delivering information.

Recommendations

Making the products and services of a business more accessible for those with neurodiverse conditions will look different for each business. The level and scope of what is reasonable will also be different, depending on the resource and capability available to make these changes.   Examples of measures that businesses could consider include –

• Provision of training for staff on dealing with customers with neurodiverse needs.
• Improving e-commerce accessibility by providing a website which is easy to use and does not present barriers in accessing information.
• For individuals with processing differences, providing –
  • face to face or telephone customer service facilities.
  • extended appointment times.
• Providing alternatives to written information for service-users with conditions such as dyslexia.
• Providing quiet facilities (such as waiting rooms) for individuals with sensory differences.

These are just a few examples of what might be useful but, where possible, the business should consider the individual customer and the needs of those with a range of disabilities and neurodiverse conditions when making decisions about accommodating neurodiverse service-users.  Making services accessible to all, should be the goal.

Employers should also seek to engage with their disabled and neurodiverse employees on these issues. Such individuals will be able to use their industry expertise and personal experience to help companies improve customer relations and create real commercial opportunities in this space.

Next Article

In our next article, we will explore how employers can extend support to employees who may have neurodiverse needs and discuss wider initiatives in this sphere which businesses can implement.

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