In our last article, we continued our neurodiversity discussion with a focus on how businesses can make their products and services more accessible to neurodiverse customers, and the business case for doing so. This week, in our final article of this series, we look at legislation which impacts on neurodiversity in the workplace, as well as considering how and why employers should take steps to support neurodiverse job applicants and employees.
Disability and knowledge of disability
As explained in our previous article, not all instances of neurodiversity will bring an individual within the statutory definition of disability, which requires a physical or mental impairment that has a substantial and long-term negative effect on the person’s ability to carry out normal day-to-day activities. Many, however, will meet this threshold, meaning that the protection of the Equality Act applies.
Last time, we saw that obligations to accommodate disabled consumers apply to service providers regardless of whether or not they know if they have disabled service-users. Knowledge of disability is also important in the employment arena.
The EHRC Statutory Code of Practice on discrimination in employment confirms that an employer will not be liable for certain types of discrimination, including the duty to make reasonable adjustments, if they did not know, or could not reasonably have known, that an individual was disabled. What the Code also makes clear, however, is that an employer must do all they reasonably can to find out if a worker has a disability and should consider whether someone has a disability, even where one has not been disclosed. In addition, employers will be assumed to know about a person’s disability if they have “informally” let their manager know of their condition or if an agent or employee, such as occupational health or human resources, is aware.
Legal risks
We identified previously that, in relation to the provision of goods and services, it is the duty to make reasonable adjustments that is the most relevant consideration for businesses complying with their obligations to avoid disability discrimination. In context of the workplace too, reasonable adjustments are highly important. However, wider considerations also come into play as there is an increased risk of disability discrimination in all its various forms arising. Case law provides some useful examples.
In Sherbourne v Npower Ltd (2019), the employee succeeded in reasonable adjustments and indirect discrimination claims. Here, the employee worked in an open-plan, flexible office environment. As he was overwhelmed and distracted by the office noise and by a busy walkway near his work-station, he suffered a breakdown resulting in sickness absence. Occupational health reported that the employee would likely be diagnosed as autistic and that adjustments should be made. These recommendations were not implemented, however, and a performance management process ensued. According to the Tribunal, the company had inappropriately applied its capability procedure and had used dismissal “as a tool to rid themselves of a disabled employee”.
In Morris v JB Fix Ltd (2018), the Tribunal held that the employee was subject to bullying and harassment because of his disability and that his dismissal was discriminatory. The employee had informed the employer at interview that he had Asperger’s Syndrome, but at work he was verbally abused several times by senior employees who disparaged his perceived intelligence. This happened after the employee took a work van home and another vehicle crashed into it overnight. The employee was dismissed and bad references were provided to his prospective employers.
In Q Ltd v L (2019), the employee had Tourette’s and Asperger’s syndromes and associated stress. Before his employment started, he told an occupational health provider about his conditions, but this information was not passed to the employer. In a later reasonable adjustments claim, the EAT found that the company was not “fixed” with knowledge of the information given to occupational health, because there was no written consent to its disclosure. Nonetheless the line manager should have made enquiries about the employee’s medical condition and should have asked him to agree to the release of information about his disability. The Tribunal decided that the employee was subject to discrimination arising from disability when he was put at risk of redundancy, and also that the employer had failed to make reasonable adjustments which would have included setting specific targets and breaking the individual’s work down into chunks.
While the cases described above involve individuals who qualified as disabled under the Equality Act, it is important to remember that employers owe a duty of trust and confidence to each of their employees. In cases where a neurodiverse person does not qualify as disabled, they still are protected by this duty and their unfair treatment at work could, therefore, expose the employer to the risk of a constructive dismissal claim.
Embracing a neurodiverse workforce
Aside from avoiding legal and reputational risk and being an ethical employment strategy, the benefits of a embracing a neurodiverse workforce are considerable, as we saw in the first article in our series. Doing so provides a business with the opportunity to attract and retain talent capable of bringing wide-ranging skill sets to the workplace, which can help a business to increase competitiveness and grow the bottom-line.
What, then, can employers do to attract, accommodate and retain neurodiverse staff within their business? Here are some recommendations.
Staff training
As part of their Diversity & Inclusion agenda, prudent employers should have an ongoing programme to educate all staff on disability and diversity in the workplace, including neurodiversity, and also on discrimination issues. As well as setting expectations of staff and establishing the right workplace culture, such training will assist in gaining and maintaining the trust of neurodiverse employees and supporting them in tackling obstacles in the workplace.
Providing a supportive environment
One of the challenges for employers is establishing who could benefit from support. There can be a stigma associated with disability and neurodiversity and many individuals prefer not to reveal their conditions to employers. Other employees do not consider themselves to be neurodiverse or disabled at all and some do not like to be treated as neurodiverse or have that label attached to them.
Employers should make themselves and their staff aware of signs of potential neurodiversity and should watch out for these. For example, if someone indicates they have trouble with noise (sensory overload), an employer might want to ask about this in a sensitive way to understand if there are any underlying issues they can help with.
Networks within the workplace are one of the best ways to support and equip colleagues and many businesses have set up employee forums and networks focused on supporting those with disabilities and increasing awareness. Indeed, DLA Piper has its own ability people network, Enabled, which supports anyone affected by a disability, neurodiversity or physical or mental wellbeing issue.
An important part of providing a supportive workplace environment will be by ensuring that people are allowed to be themselves in a way that works for them as this is a huge part of being neurodiverse. Many autistic people “mask”, which means faking neurotypical behaviour, as a social survival strategy and to make other people feel more comfortable. But this is hugely draining emotionally, because the person isn’t living authentically and it can have detrimental impact on their wellbeing.
By raising awareness and creating a supportive environment, employers can empower staff to disclose their conditions, be themselves, raise issues and explore what support they may require on a collaborative basis. This can help to foster improved individual performance, and both attract and retain talent.
Communication with neurodiverse employees
What is clear from the tribunal cases outlined above is that, in most instances, there could be better communication between employers and employees about the day-to-day impact of an individual’s neurodiverse condition. Good communication will improve understanding and help to ensure appropriate adjustments are put in place where necessary. Employers should, therefore, look to have ongoing, practical and supportive conversations with neurodiverse employees. These discussions can consider the need for any possible tailored changes to working conditions and employers should seek and heed specialist advice to help inform the discussion where required.
Providing accessible information
Accessible information is crucial from the outset of a potential employment relationship, with many steps that employers can take to implement neuro-inclusive recruitment practices. For example, ensuring that information can be assimilated easily by job applicants, with role descriptions made as clear and concise as possible. It is also important to ensure that core skills for a role are emphasised and distinguished from skills that may simply be helpful additions.
More widely, employers should look to make any information provided to employees digestible and easy to access. This applies both to oral and written information. An excessive amount of information provided verbally can be overwhelming for someone who is neurodiverse and adjustments to how such information is delivered should be made. In terms of documents, an initial step is to consider whether information directed at employees can be less text-heavy. Documents with lots of text can be challenging for anyone to absorb, but for a neurodiverse person they can be impenetrable. Infographics are an increasingly common communication tool which have proved successful in many workplaces as a useful alternative to text-heavy documents.
We have created a handy infographic with top tips for neuro-inclusive recruitment practices.
What next?
We hope that you have benefitted from the information in this and our previous articles on supporting neurodiverse employees and neurodiverse consumers. If you would like to discuss any of the issues raised or to receive advice from DLA Piper’s Employment team on your business’s approach to disability and neurodiversity, including assistance with implementing relevant policies or staff training, 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.