Do you have an employee who you suspect has a neurodivergent condition? Are you aware of your obligations?
With increasing awareness around neurodiversity, disability, and associated claims, we are often asked: what is neurodiversity in the workplace? It is important for employers to understand their legal obligations when supporting neurodiverse individuals. Businesses have a responsibility to create a diverse, inclusive and supportive environment that provides a safe workplace and ensures equal treatment for all employees.
A report by NDEI (Neurodiversity Employers Index) showed that around 15% of people are neurodivergent, and 29% of participating employees said that they had experienced discrimination in the workplace related to their condition. This highlights why it’s important to consider how the Equality Act 2010 applies to neurodivergent individuals and the scope of its protection.
Is neurodiversity a disability?
The Equality Act 2010 allows employees to bring claims on the grounds of 9 protected characteristics. Although ‘neurodiversity’ itself is not a protected characteristic, some neurodivergent conditions may fall within the legal definition of a ‘disability’, which is one of the protected characteristics. Employers should therefore assess whether an employee’s neurodiversity is likely to be protected under the Equality Act.
Where do you stand legally?
An employer cannot be held liable for discrimination arising from disability if they do not know and could not reasonably be expected to know that an employee had a neurodivergent condition. Nonetheless, they have a duty to remain vigilant and take reasonable steps to identify any signs that may indicate an employee has a neurodivergent condition, which could amount to a disability.
What are your obligations?
If an employee has a neurodivergent condition, as an employer, you will need to consider making reasonable adjustments to help them carry out the role to the best of their ability. This may include offering extra time to carry out tasks or allowing them to wear headphones in the office, for example. This is case-specific and it would be better to take advice from a medical professional and a legal advisor before determining what reasonable adjustments need to be made.
In addition, you must not treat a neurodivergent individual less favourably than their colleagues, and they should be treated fairly in the workplace. This involves taking preventative measures to ensure that the individual is not harassed because of their disability. However, the definition of harassment is broad and can include a wide range of conduct, including people mocking the individual or excluding them from events. It can be useful to provide up-to-date training for staff members to ensure they know the expectations of the business, to help prevent any potential discrimination and ensure that you have effective policies in place.
The benefits of using Backhouse Solicitors:
Supporting neurodiversity in the workplace is essential. If you have an employee with a neurodivergent condition or suspect someone may have one and are unsure how to handle the situation, get in touch with our Backhouse employment law experts for advice.
Don’t get caught out by neurodiversity challenges.
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