Neurodiversity in the workplace

Sep 9, 2019

It is well known that employers have an obligation to make reasonable adjustments for disabled employees, and that they should not be treated unfavourably for a reason arising out of their disability.  However, as a recent case in the Court of Appeal illustrates, while this easy to say, it is not so easy to do, particularly when it comes to employees with a Neuro-diverse condition.

What is Neuro-diversity?
Neuro diversity is an umbrella term referring to multiple conditions, such as Autism, ADD and dyslexia, that all affect the cognitive function of the brain. By law, employers are obliged to make reasonable adjustments for someone with a disability, which often includes neuro diverse individuals. Given that forms of neuro divergence are on a spectrum, and therefore have a wide range and severity of associated characteristics, it is not always obvious to employers that a particular behaviour or need arises out of the individuals condition. 

Neuro-diverse conditions are often referred to as ‘hidden disabilities’ and for good reason.  Often, the individual will appear as if they are coping well, when in fact the opposite is true.  It is in this way that the condition, and in particular its effects on the individual, can be ‘disguised’.  This can cause problems, particularly following the recent case of City of York Council v Grosset which held that an employer would still be guilty of disability related discrimination even if it could not reasonably have been aware that a particular behaviour arose out of the employee’s disability. For this reason it’s vital that employers of neuro-diverse individuals take steps to understand the individuals condition as fully as possible.

Benefits of Neuro-diversity
Neuro-diversity can be tremendously beneficial in the workplace, as a number of high profile companies such as Google and Microsoft will attest.  This natural diversity brings with it new ways of thinking and approaching situations that can introduce a positive, fresh new mind-set to the workforce.  

In order to benefit from the skills neuro-diverse individuals possess, employers need to understand and embrace the conditions, and tailor their work processes and policies so that these individuals are supported to perform at their best.  Indeed, failure to do so can lead to a claim for disability discrimination.  Taking stresses away from the employee’s work environment enables their positive neuro divergent traits to flourish. For example, creativity, attention to detail and lateral thinking are all common characteristics. This benefits the employee’s self-esteem, since they are performing well, as well as high levels of productivity which benefits you, the employer.

Adjustments for Neuro-diverse employees
Often, adjustments need only be small and inconsequential, but can make a substantial difference to the individual concerned.  For example, many people on the autism spectrum struggle with change, and need structure and routine in order to keep anxiety levels to a minimum. Avoiding changes wherever possible (no matter how small), and having a plan in place to provide employees with early notification of unavoidable changes can help them to deal more effectively with any anxiety that may be caused. 

Similarly, adjustments in the way things are communicated can make a big difference.  Many people on the autism spectrum struggle with verbal and social communication.   Therefore, ensuring any important instructions or directions are given in writing (such as an email) and/or allowing additional time to complete tasks can be beneficial. 

Changes may need to be made from the recruitment process through to access to promotions in order to minimise the issues that could arise due to neurodiversity. This can come in the form of formal training to managers, or just giving more choice to employees about how they carry out tasks, since everyone works best in a different way.

Should the employee tell you about suitable adjustments?
In the recent case of Meier v BT, the Northern Ireland Court of Appeal considered whether there had been a failure to make reasonable adjustments by an employer in relation to a job applicant with Aspergers syndrome.  The employer, BT, required Mr Meier to complete an on-line ‘SSP’ test as part of its recruitment programme.  Mr Meier received a low score and was rejected for the job. He argued that the test wasn’t appropriate for people on the autism spectrum, and that reasonable adjustments should have been made.  BT stated that the test formed part of the minimum requirements for the role, and that it was Mr Meier’s responsibility to tell them what adjustments he needed.   

The Court of Appeal disagreed with BT.  The SSP test was a form of psychometric testing, the questions for which could be interpreted as ambiguous, contradictory and requiring judgments to be made on missing information.  Mr Meier’s condition meant that he was placed at a substantial disadvantage as he was unable to ‘read between the lines’ and needed information to be explicit.  Further, the onus was on BT to identify reasonable adjustments that were required, it wasn’t for the employee to inform BT of these.  

Supporting Neuro-diverse individuals
In order to fully support Neuro-diverse employees, HR should take the following steps:

  • Give job applicants the option to disclose any neurological condition at the recruitment stage, and be proactive about discussing potential adjustments.
  • Ensure employees feel fully understood while working, are given ample opportunities to discuss their needs, and able to be open and comfortable discussing their condition.
  • Supplying managers with formal training on the matter, to not only create a heightened awareness but also techniques on how to handle situations that may arise.
  • Listening to the employee about what they want, and taking action accordingly.
  • Proactively seek understanding of how a condition may affect the individual and what adjustments may be necessary on a day to day basis to help them perform.
  • Seek guidance and support from specialist organisations such as the National Autistic Society, and British Dyslexia Association.
  • Do not assume all neuro-diverse employee’s needs are the same.

For further information, or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com

 

 

 

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