Promoting a diverse workplace culture is beneficial to employers and employees alike, as it encourages employee retention, helps to attract the best talent, increases employee productivity, promotes the employer’s reputation, and assists in meeting the employer’s statutory obligations. In the workplace, diversity is mainly associated with certain protected characteristics e.g. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. By way of development and awareness, the scope has extended over time to potentially include characteristics such as gender identity, social and demographic background and neurodiversity.
The term “neurodiversity” refers to the operation of the human brain and cognition i.e. learning, thinking, interacting, recalling and processing information, paying attention and communicating with others. There is a non-exhaustive list of conditions, some of which are referred to as “invisible disabilities”, that fall under the neurodivergent umbrella including; autism, dyslexia, attention deficit hyperactivity disorder (ADHD) and developmental co-ordination disorder (DCD). As an employer, you should be cognisant of the impact neurodivergence could be having on your employees and if possible and necessary, make reasonable adjustments to support and enable the employees to work efficiently.
The below scenario lays out some of the key steps and considerations for employers.
An employee claims they suffer from a neurodivergent condition and is upset as they feel their condition is impacting their ability to carry out their duties. As an employer, what are our responsibilities to the employee?
As a starting point, in this case you should make further enquiries with the employee about their exact condition and how it is affecting them in the workplace. You may wish to consider obtaining expert medical evidence such as an occupational health report, or the employee’s GP notes and records or a report from specialists on the condition. Neurodivergence exists on a spectrum, therefore some conditions may be considered a disability, while others may not. Medical evidence should help confirm or rule out whether the employee’s condition is a disability and advice from OH, with a better understanding of the particular condition, should assist you in assessing if you have an obligation to make reasonable adjustments, and what those adjustments should be. In assessing reasonable adjustments in these circumstances, it is important to remember that adjustments may be needed for this employee with cognitive disabilities. You should be aware that protection from discrimination is a “day-one right” for employees and any failure to make reasonable adjustments for a disabled employee may result in a claim for discrimination on grounds of disability. Even if the employee’s condition does not meet the legal definition of a disability however, I suggest you reflect on advice from their GP and OH and consult with the employee in order to support them in your workplace.
If you do not already do so, it could be useful to issue a workplace assessment to employees at the start of their employment, as this may identify any neurodiverse workplace needs at an early stage. You must be careful when processing such sensitive information, complying with your GDPR obligations, and as a result of obtaining this information avoid taking any steps which might be to an employee’s detriment. Depending on the condition, reasonable adjustments could include; seating the employee in a calmer area of the office with less disruption, noise-cancelling headphones, and altered lighting or ventilation. These are some steps you might consider in conjunction with OH, the employee’s GP and the employee themselves.
You may also wish to review implementing a Neurominority policy which could assist in addressing any issues that arise, as well as educating and raising awareness of neurodiversity within your workforce. Such a policy could be a reference point for any adjustments to employee targets; key performance indicators, performance management procedures, as well as outlining any guidance on flexible working and identifying the relevant contact within your company from whom employees may seek support. You could consider revising your wider pack of policies and staff handbooks, with a view to making them more friendly for neurodiverse employees. This could involve minimising “text-heavy” policies and consolidating key information into flowcharts which may be easier to process for employees.
As outlined, neurodivergence exists on a spectrum and each scenario will have a unique set of facts, it is imperative that you handle each matter on a case-by-case basis and seek expert advice about this employee and their working environment. You should remain alert to the risk associated with failure to make reasonable adjustments where the employee is considered disabled, and generally promote a diverse and equitable workplace.
The main content of this article was provided by Patricia Rooney and Emma Doherty of Tughans employment team.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
