neurodiversity.

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.

What is neurodiversity?

The most common types of neurodiversity are:

• Autism spectrum disorder (ASD) including the condition that was previously known as Asperger’s
• ADHD – Attention Deficit Hyperactivity Disorder or ADD – Attention Deficit Disorder
• Dyscalculia
• Dysgraphia
• Dyslexia
• Dyspraxia or Developmental Coordination Disorder (DCD)
• Obsessive Compulsive Disorder (OCD)
• Bipolar depression
• Prader-Willi syndrome
• Social anxiety
• Tourette syndrome

This is not an exhaustive list. 

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.

Is neurodiversity a disability?

The language around disability is problematic. Being neurodivergent does not mean that you are a disabled person but for the purposes of the legal protections that are available for disabled employees in the workplace it may be of benefit for you to think about whether you are Equality Act disabled. 

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.

Should I tell my employer I am neurodiverse?

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?

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.

How can employers recognise neurodiversity in the workplace?

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.

What must employers do or not do around neurodiversity?

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.

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.

If your neurodiversity amounts to a disability and you have the protection of the Equality Act your employer is legally required to consider reasonable adjustments. Read our guide to what is a reasonable adjustment.

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.

How do we help neurodiverse clients with issues in the workplace?

We work with many neurodivergent clients. Examples of the kind of work we do include:

• Writing to your employer to put them on notice that we consider you meet the Equality Act definition of disability and that this requires them to make adjustments to allow you to fully and effectively participate in the workplace.
• Writing to your employer to set out the reasonable adjustments they are required by law to put in place to assist you. 
• Writing to your employer putting them on notice that their conduct breaches their legal obligations towards you as a disabled employee and detailing how they should be assisting you not discriminating against you because you are neurodiverse.
• Writing a letter before action spelling out the extent to which your employer is in breach of its legal obligations and putting them on notice that you intend to issue claims in the Employment Tribunal.
• Negotiating an exit package from an employer who is unable or unwilling to provide a suitable working environment to cater for your needs. 
• Writing to your employer to point out that unreasonable performance management without consideration whether the reasons for your performance are linked to diversity may be unlawful disability discrimination and inviting them to reconsider their approach.
• Simply writing to your employer to put them on notice that you are taking advice from a lawyer which may help stop any adverse treatment. 

Have there been many legal cases around neurodiversity as a disability?

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.