Have you heard of ‘neurodiversity’? The term encompasses ‘alternative thinking styles’ such as Autism, ADHD, Dyslexia, Dyscalculia and Dyspraxia, and applies to approximately 15-20% of the population. Neurodiversity Celebration Week explains that the term is used to take a balanced view of the strengths and challenges neurodivergent people face, avoiding negative labels such as ‘disorders’. The organisation also suggests that challenges come from society being designed by ‘neurotypical’ people, rather than the conditions themselves. 
As part of this positive focus, you have probably heard people refer to some conditions as ‘superpowers’. Most prominently, Greta Thunberg tweeted “I have Aspergers and that means I’m sometimes a bit different from the norm. And – given the right circumstances – being different is a superpower. ” But others have pushed back against this language, as it risks overlooking the challenges neurodiverse people face. Founder of Ladbible Alex Partridge gave a more balanced view: “ADHD is not a superpower…ADHD has enabled me to achieve stuff …But it’s also the reason for trip ups.” 
Meanwhile, neurodivergence was a factor in 102 discrimination cases in 2023, including 30 mentioning dyslexia, 25 autism, 19 ADHD, 14 dyspraxia and 14 Aspergers. Other disputes may have settled before reaching this point. 
This makes it difficult for employers to know how to approach neurodivergence. Should you acknowledge the challenges neurodiverse employees may face, or approach neurodiversity as a superpower? 
Is neurodivergence a disability? 
Whether or not people consider themselves ‘disabled’ in the common use of the term, they are protected by the Equality Act if they meet the criteria. Under the Equality Act 2010 a disability is a long-term impairment which substantially affects your ability to carry out day-to-day activities. It doesn’t have to stop you from doing them altogether. 
When we look at the symptoms, plenty of these have the potential to make day-to-day activities more difficult. ADHD can cause poor organisational skills, inability to focus or prioritise, losing things, forgetfulness, mood swings, risky behaviour and an inability to deal with stress. Difficulties associated with dyslexia include erratic spelling, slow reading and writing, poor concentration and memory, difficulty organising thoughts on paper and difficulty managing time. Meanwhile, those with Autism can face extreme anxiety, sensory overload, restrictive behaviour, meltdowns, shutdowns and difficulties with social communication and interaction, ranging from their literal interpretations to being unable to speak. 
The law considers the impact of the condition, rather than the diagnosis. The same condition may be a disability in some cases but not others, depending on which symptoms are experienced and to what extent. 
When might discrimination be an issue? 
It is discriminatory to treat an employee unfavourably because of something arising from their disability, unless the treatment is a proportionate means of achieving a legitimate aim. This is called discrimination arising from a disability. ‘Unfavourably’ can encompass a range of treatment. 
There are other forms of discrimination that can occur: 
Direct discrimination: treating an employee less favourably because of their disability. For example, refusing an employee a promotion because of their condition, even though they are suitable for the role. 
Indirect discrimination: where a policy or practice impacts disproportionately on employees with a disability (even if the impact is unintended) by putting them at a disadvantage compared with those who are not disabled. For example, a blanket ban on headphones or earplugs could impact more on employees with autism who experience sensory overload. 
Harassment: unwanted conduct that creates an intimidating, degrading or offensive environment. This could include offensive comments or jokes about neurodivergent people, or the use of offensive and outdated terms. 
Victimisation: penalising an employee because they enforced their rights, supported another employee to enforce their rights under legislation that protects against disability discrimination, or you believe they intended to. 
Discrimination by association: where an employee is treated badly because they are associated with somebody who has a disability. For example, turning down an employee for promotion because they care for somebody with a disability, and you worry this will affect their commitment to work. 
Failure to make reasonable adjustments: Where an employer fails to make reasonable changes to the workplace or practices to help reduce the challenges faced by a disabled employee. 
What sort of adjustments might be needed? 
If your employee has a disability under the Equality Act 2010, you must consider reasonable adjustments to support them in their job. This can include physical adjustments to the workplace, changes to policies and practices, or the provision of specialist technology and aids. This applies to mental health conditions and neurodivergence, not just physical disabilities. 
For example, many autistic people experience clothes sensitivity, and 1 in 3 have been put off a job by the mandatory uniform. You might help by making reasonable exceptions to the dress code. 
In Duncan v Fujitsu , the employee had difficulties communicating orally. The company required employees to phone if they were sick, but tribunal felt it would have been reasonable to allow the employee to communicate in writing. 
Where errors or misconduct are related to a condition, you should factor this into your approach and avoid penalising behaviour beyond their control. Disproportionate or harsh criticism could be discriminatory, as in Debont v Marsh Farm Future. Instead, focus on how you can support the employee. 
What is reasonable will depend upon the facts of each case and the workplace. Employers should consider whether the adjustment will remove or reduce any disadvantage, is practical and affordable, and whether it could affect the health and safety of others. 
Employers may refuse requests that are unreasonable but should consider alternative options. For example, an employee with anxiety might to change their working hours to avoid travelling at rush hour. You could refuse the request if there would be no work available during the requested hours but offer to reduce the workers’ hours so they can travel outside of rush hours. Or you might have to enforce a uniform policy for safety or hygiene reasons but allow similar items in different fabrics or fits that are more comfortable for the individual. 
What if an employee doesn’t have a diagnosis (as far as I’m aware)? 
You are only required to make reasonable adjustments if you have been told about the disability or could reasonably be expected to know. What you could ‘reasonably be expected to know’ may be slightly trickier with ‘invisible’ conditions. 
This was considered in a recent claim for discrimination where the claimant had not informed his employer of his ADHD. He argued that his poor timekeeping should have put the firm on notice, but the tribunal did not feel that the firm should have been aware on just this basis. 
In Aecom v. Mallon, a job candidate requested adjustments to make his application orally, as his dyspraxia caused trouble expressing his thoughts in writing. Before considering the request, the employer requested further information in writing. While the employer didn’t have all of the information, their process made it almost impossible for the candidate to provide the information needed. The request should have been enough for the employer to make enquiries and offer support. 
However, you should not wait for an official diagnosis. Consider how you can help employees as soon as you are aware they have a long-term condition that is impacting their day-to-day activities. The DWP was recently found to have discriminated against an undiagnosed employee when they failed to make reasonable adjustments while he waited for an autism assessment . This is especially important as individuals currently face long waits for a diagnosis. 
Training and awareness may help managers to spot the signs of neurodivergence and know when to help. However, you should be careful to avoid reinforcing harmful stereotypes. 
So how should employers treat neurodiversity? 
You must meet your legal obligations. The measures under the Equality Act are intended to help all employees reach their potential, no matter what their disability. Recognising any condition as a disability in not an insult and does not imply a weakness. Make sure your managers understand that disabilities can be mental as well as physical. They need to understand the law when managing employees and making decisions, such as allocating work or considering flexible work requests. 
If you are concerned about how your discussions might be received, you can’t afford to avoid the issue. Instead, consider how you approach the topic. A solicitor can help you to understand your legal obligations, but it might be helpful to seek HR support to have the discussions. Training can also help managers to approach sensitive subjects. 
There is no reason you can’t go above and beyond your obligations (if possible) and offer support to all staff who need it, whether they meet the definition of disability or not. This could help to create a culture where employees feel comfortable speaking up when they need support, without needing to disclose personal information. 
Complete a risk assessment with mental health in mind and review your policies for risks or unintended effects. 
Listen to your employees. If someone discloses that they have (or might have) a condition, you have the chance to learn about what is difficult and how you can help. Never turn down a request for adjustments without giving it proper consideration, and always try to find a solution. 
How can we help? 
Help you to understand whether a condition meets the legal definition of a disability and how to respond. 
Review your policies and advise of any risks. 
Help you understand if you have been discriminated against, and bring a claim if you have. 
Get in touch for advice. 
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