Five years ago, in 2017, a Harvard Business School Professor opined in the Harvard Business Review that neurodiversity is a competitive advantage which employers should embrace within their workforces1. The Review’s article identified that the sometimes extraordinary skills of many neurodiverse individuals were not being tapped into by employers because of the traditional way in which companies found and recruited talent and decided who to hire and promote.
Fast-forward to 2022 and this thinking is gradually becoming mainstream. Employers are increasingly recognising that the benefits of a neurodiverse workforce are considerable, including access to more of their employees’ talents and diverse perspectives that can help their business to increase competitiveness.
Is neurodiversity a disability?
Neurodiversity is recognised to encompass a wide spectrum. Everyone to some extent will experience and interact with the world differently. A neuro-inclusive environment can therefore be both beneficial and attractive to employees, job applicants and consumers alike. This is irrespective of whether they meet the threshold of disability under the Equality Act 2010 or even consider themselves to be ‘neurodiverse’. Most commonly, the term neurodiversity is used to refer to conditions such as ADHD, autism, epilepsy and dyslexia.
Awareness has recently been growing in terms of understanding the prevalence of neurodiversity in society and the impact that it can have on the daily lives of those who process information differently. An estimated one in seven people in the UK and 15-20% worldwide are neurodivergent, with numbers on the rise2. Statistics therefore suggest that those with neurodivergent conditions make up a substantial proportion of our workforces and customer bases.
In the UK, a disability is defined by the Equality Act 2010 as a “physical or mental impairment” that has a “substantial” and “long-term” negative effect on someone’s ability to carry out normal day-to-day activities. Among other rights, the Act imposes an obligation on employers to make “reasonable adjustments” to remove disadvantages experienced by job applicants and employees with disabilities. Such adjustments may include accommodations such as remote working, flexible hours and extra time to do tasks. Often, guidance is needed from medical professionals, such as occupational health practitioners or specialists, to support employers in making such changes.
Some people with a neurodivergent condition would not consider themselves disabled, nor would their condition necessarily meet the definition of a disability as described in the Equality Act. Whilst considerations as to how to manage both may be similar, it should not be assumed that disability and neurodiversity are one and the same. Nonetheless, given that neurodivergent conditions are often not immediately apparent, neurodiversity has often been described as an invisible disability. Indeed, many people do not realise they are neurodivergent until they reach adulthood, or sometimes even at all.
In many instances, the definition of disability prescribed by the Equality Act will encompass neurodiverse conditions, thus very likely placing a requirement on employers to put appropriate adjustments in place for their neuro-divergent job applicants and employees, where they face a disadvantage in the workplace.
Moreover, all service providers owe a duty to make reasonable adjustments for disabled consumers under the goods and services section of the Equality Act.
What are businesses doing about neurodiversity?
A study recently found that whilst 99% of the FTSE top 100 firms had inclusive mission statements, only 37% had sustainable disability initiatives in place and only four firms had specific neurodiversity initiatives. Moreover, only 16% of the 250 business leaders polled described their neurodiversity initiatives as ‘highly effective’.3 So, whilst awareness may be growing and companies are beginning to implement policies and initiatives, there is clearly still a long way to go before businesses are fully supporting those with neurodiverse conditions within their staff and consumer bases.
There remain significant barriers for neurodivergent people, which ‘neurotypical’ people do not experience. As with many conditions, the effect of neurodiversity will vary person to person. Even just one condition, such as autism, covers a huge spectrum. This means that blanket policies and stock adjustments will not be enough to support those with disabilities and neurodiverse conditions to the extent they need to be supported. From a legal perspective, failure to put in place reasonable adjustments may expose employers and service providers to claims of disability discrimination, along with a risk of serious reputational damage.
Legal risks aside, putting in place accommodations and support processes for people with disabilities and neurodiverse conditions is, though perhaps cliché, simply the right thing to do. Neurodiversity and disability are commonplace in the UK. For businesses willing to be innovative and open to change, this represents an opportunity to attract and retain talent capable of bringing a unique skill set to the workplace, while also growing market-share amongst an undervalued and under-supported customer-base.
What’s coming up?
Over the next few weeks, we will continue to explore this topic from a variety of different angles, looking at both supporting neurodiverse consumers and neurodiverse employees.
DLA Piper’s Employment team can advise you on your business’ approach to disability and neurodiversity, assist you with implementing relevant policies and provide training to your staff. For further information, please speak to your usual DLA Piper contact or email employment@dlapiper.com.
You may also wish to fully review your organisation’s diversity and inclusion strategy, and your compliance with legal obligations, by completing the DLA Piper Diversity and Inclusion Index.
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1 Neurodiversity Is a Competitive Advantage (hbr.org)
2 Neurodiversity – BBC Worklife
3 Less than 40 per cent of FTSE 100 firms have disability initiatives (peoplemanagement.co.uk)