What is neurodiversity?
Neurodiversity refers to the fact that some people function and process information differently to what clinicians have traditionally classed as “typical”. Being neurodivergent describes a wide range of experiences. It’s not itself a clinical diagnosis but rather an umbrella term to refer to conditions including autism, ADHD, dyslexia, and DCD.
The number of neurodivergent people has increased significantly in recent years. Some estimates suggest that 1 in 7 people in the UK are neurodivergent. This means that even small employers are likely to employ a neurodivergent employee at some stage.
What is the significance of being a neurodivergent employee?
Employees do not automatically or intrinsically qualify for any particular legal protection simply by being neurodiverse. However, if an employee’s neurodivergence meets the statutory definition of ‘disability’ under the Equality Act 2010 (EA 2010), they will be protected against discrimination by the employer. This includes direct and indirect discrimination, discrimination arising from disability, harassment and an obligation to make reasonable adjustments.
What should employers of neurodivergent employees do?
The best advice is to build a workplace environment that’s authentically inclusive for neurodivergent colleagues. This improves the experience of those colleagues and reduces legal risk. Here are seven key recommendations for creating a workplace which enables neurodiverse colleagues to thrive and deliver their best work.
1. Be proactively inclusive
Rather than waiting for a formal diagnosis, or for issues to escalate, initiate open, supportive conversations when you notice signs that a colleague may be struggling. Changes in behaviour, communication challenges, or difficulties with workload or environment can all be early indicators of unmet needs and potential neurodivergence. Recognising and responding to these indicators proactively can help create a genuinely inclusive workplace culture, as well as ensuring legal compliance.
2. Educate colleagues about neurodiversity
Invest in training that explains what neurodiversity is, how it may present in the workplace, and why inclusive communication matters. This helps to build a kinder, more respectful workplace, but can also significantly reduce legal risk. Many workplace conflicts and legal claims originate in a simple lack of awareness exacerbating misunderstandings and frustrations. Appropriate training can help managers spot indications early and respond appropriately. It can also help to avoid the use of insensitive language, which can create significant liability for an employer, even when it is well-intentioned.
3. Review your policies and procedures
Audit your policies, especially around performance management, communication, and grievances, to ensure they don’t inadvertently disadvantage neurodivergent colleagues. Avoid blanket rules and build in flexibility for managers to apply where appropriate. It may also be helpful to introduce some indicative examples of interactions or treatment that could be considered offensive or discriminatory.
4. Avoid assumptions
Different people may experience neurodivergence in very different ways. Don’t assume you know how an individual experiences neurodivergence based on a diagnosis or your own experience. Instead, ask the individual respectful, open-ended questions and take the answers seriously. This applies equally to the assessment of reasonable adjustments: the support that works for one person may not assist another. While an employer need only make such adjustments as are reasonable, this is assessed by reference to the specific individual’s situation, and the expectations are high.
5. Apply reasonable adjustments consistently
Where reasonable adjustments are identified, they should be applied consistently, not just agreed in principle. Adjustments that may feel minor to other people (e.g. softer lighting or turning off background music in an office) are sometimes applied more inconsistently than more obvious adjustments (e.g. working from home) but can still make a significant difference to neurodiverse colleagues. Ensuring all reasonable adjustments are consistently applied mitigates legal risk, but it is also a relatively easy step for an employer to take to support a neurodivergent colleague.
6. Take concerns seriously and address them early
Where concerns are raised about dismissive or offensive comments or treatment, engage with them appropriately and at an early stage. Swift, clear action can reassure colleagues that their concerns are being listened to and acted upon, which in turn can prevent escalation. This includes taking informal feedback seriously and intervening proactively where insensitive remarks or exclusion are witnessed or reported.
7. Document everything
Keep clear records of any issues raised and how they are handled. This ensures accountability and supports fair, transparent decision-making. It is particularly important in relation to requests for reasonable adjustments and any incidents of potentially exclusionary or unfair treatment. It will also be important to document the steps taken to resolve the issues raised. At a tribunal, such documentation is critical in defending decisions and demonstrating a fair process. Needless to say, colleagues raising issues about discrimination or reasonable adjustments should never be subjected to adverse action for having done so: this is likely to lead to a successful victimisation claim.
If you’d like to discuss how to make your workplace more neurodiversity-inclusive, feel free to get in touch with Paul Seath or Peter Kerr-Davis.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.