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neurodiversity discrimination lawyers

Neurodivergence refers to a person on the autism spectrum or more generally to someone whose brain processes information in a way that is not typical of most individuals.

Some conditions may amount to a disability under the Equality Act 2010 definition according to the extent to which they substantially impair normal day to day activities.

There is no rule that neurodivergence equates to a disability in the workplace and every case will be fact specific.

Where the disability threshold is met an employee will receive the protection of the Equality Act in relation to the requirement for employers to make reasonable adjustments and the right for the employee not to be subjected to unlawful discrimination, harassment or victimisation.

Whether or not you disclose your neurodiversity to your employer is a decision for you. If you want adjustments you will have to disclose it otherwise your employer has no obligation to assist you.

There are advantages to disclosing but also advantages in not disclosing. This will depend largely on the attitude of your employer to neurodiverse individuals – how have they treated others who have been open about their condition?

The most common types of neurodiversity are:

  • Autism spectrum disorder (ASD)
  • ADHD – Attention Deficit Hyperactivity Disorder or ADD – Attention Deficit Disorder
  • Dyscalculia
  • Dyslexia
  • Dsypraxia or Developmental Coordination Disorder (DCD)

Among adults dyslexia is the most common type of neurodivergent condition, with about 4-5% of the population having ADHD and some 1-2% having an ASD.

It is estimated that between 15 and 20% of the UK population are said to be neurodivergent making it crucial for employers to have measures in place to support.

Employers must not ask outright questions about health or disabilities. Creating an environment which is supportive will encourage individuals to be open about their conditions.

If you are neurodivergent you are not required to tell your employer if you do not want to but there may be situations where you want to in order to make full use of the additional legal protections that may be available to you.

Commonly accepted traits of neurodiversity include:

  • Difficulty with social interactions.
  • Difficulty with communication.
  • Issues with processing sensory information.
  • Issues with focus and concentration.
  • Intense interest in a particular topic or activity.
  • Being stuck in repetitive behaviours or routines.
  • Difficulty following instructions.
  • Difficulty organising thoughts.
  • Organisational difficulties more widely.
  • Difficulties with crowds, hot desking, bright lights, loud or sudden noises and social situations.

When embarking on performance management or disciplinary processes employers would be wise to consider whether any underlying, undisclosed neurodiversity could explain conduct or performance.

A one size fits all attitude to neurodivergent employees in the workplace must not be adopted. Employers need to consider the needs and abilities of the individual and should aim to do so in consultation with the impacted individual.  A tailored approach is key.

Some neurodivergent people will have an increased propensity to depression and anxiety and these common mental health conditions often go hand in hand with neurodivergence.

Common examples of reasonable adjustments that neurodiverse employees might request include:

  • Avoiding hot-desking.
  • Avoiding working in a noisy environment.
  • Assistive technology such as voice recognition, text to speech software, green screen, mind mapping tools for dyslexia.

For examples of case law where neurodiversity has been considered by the courts see:

  • In JC v Gordonstoun Schools the Scottish Court of Session held that ADHD was not a disability because it lacked substantial impact on day to day activities.
  • In Sherbourne v Npower an employer’s failure to consider reasonable adjustments for someone working in an open plan setting was found to be an unlawful failure to make adjustments.
  • Crawford v Chief Constable of Cumbria Constabulary was a case involving a police constable with autism and dyslexia. Claims for direct disability discrimination, discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments and disability-related harassment all succeeded.

At didlaw we routinely advise clients with neurodiversity and will agree adjustments to enable you to work with us that suit you. For example, avoiding lengthy written documents if it works better for you to have advice delivered orally or in bullet point format. We will ask you what you need us to do to make the legal process more accessible for you.

All of our new client documents are available in verbal format to facilitate your becoming our client and to enable lots of information to be more easily digested.

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