“Neurodiversity” is the idea that there is a wide variety of ways in which the human brain can work. Neurotypical people are people whose brains work in the way that society perceives to be “standard”. There is a wide variety of neurodiversities, such as autism, ADHD and dyslexia. A person who is neurodivergent has a brain which is different from the perceived “standard”.
Many people who are neurodivergent do not think of themselves as potentially being “disabled” and may be reluctant to do so. However, the law recognises that neurodivergent conditions are capable of being “disabilities” for the purposes of the Equality Act – provided that they have an adverse effect on the person’s ability to carry out normal day-to-day activities and that effect is both substantial and long-term.
According to B P Collins’ employment team, employers should be aware that neurodivergent conditions can affect individuals in diverse ways and that the nature and extent of these effects may vary from person to person.
It is very important that employers consider on a case-by-case basis whether their neurodivergent employees may be disabled and if they are, what their needs might be. This is particularly the case because employers will have a positive obligation to make reasonable adjustments for disabled employees. If employers get it wrong, they could find themselves on the receiving end of claims in the employment tribunal.
When considering what reasonable adjustments to make for a neurodivergent employee, it can be helpful to try things out and keep the adjustments under review. For example, a neurodivergent employee experiences sensory overload in a noisy working environment. Initially, the employer provides them with noise-cancelling ear plugs as a reasonable adjustment. However, the employee finds the sensation of having something in their ears uncomfortable and it makes them feel dizzy. At a review meeting, therefore, the employer and employee agree to try over-ear headphones instead.
Although it is often possible to find adjustments that work for both the employer and the employee, employers are not required to make adjustments which are not reasonable. A good example of this is the case of Lowe v Cabinet Office (ET Case Number 2203187/10). In that case, the claimant was autistic and an applicant to the Civil Service Fast Stream. The claimant struggled to read people’s emotions and interpret their comments and actions and people would often erroneously assume she was bored or uninterested in what they had to say. Although some adjustments were made to the interview process, the Cabinet Office did not adjust the required competencies for acceptance onto the Fast Stream, which included “building productive relationships” and having “high-level communication skills”. The Tribunal concluded that downgrading those competencies would not have been reasonable because it would have “destroyed the essence” of the recruitment exercise.
If you would like further advice about anything raised in this article, please contact B P Collins’ employment team at enquiries@bpcollins.co.uk or call 01753 889995.
