Neurodivergence: Legal responsibilities of employers

Although there is now an annual Neurodiversity Celebration Week, which provides an opportunity to raise awareness of neurodivergence in the workplace, there’s more that employers must do to fulfil their legal obligations under the Equality Act 2010.

Neurodivergence as a disability

Neurodivergence includes a spectrum of conditions such as autism, ADHD, and dyslexia – which can all affect individuals differently. Whether a condition is a labelled a ‘disability’ depends on its substantial and long-term impact on daily activities, such as communication and social interaction.

If it meets this threshold, employers are legally required to: make reasonable adjustments (see below), protect their employees from discrimination and harassment, and ensure fair treatment unless objectively justified.

Reasonable adjustments

Employers have a positive duty to remove workplace barriers for neurodivergent employees and make adjustments such as:

• Flexible working (adjusted hours, remote work)
• Quiet space to reduce sensory overload
• Clear, structured communication
• Assistive technology such as noise-cancelling headphones
• Extra time for tasks or training

Every individual is different, so open dialogue is essential.

The impact of ‘masking’ neurodivergence

Many neurodivergent employees mask their condition, appearing neurotypical while struggling internally. Government guidance confirms that coping mechanisms can break down, particularly under stress. The impact of the condition should be considered without coping strategies if it is possible that these will break down. Employers must also consider environmental factors like noise, lighting and fatigue when assessing workplace impact.

Failure to support neurodivergent employees can be costly

There are several tribunal cases which highlight the consequences of failing to support neurodivergent employees:

• Sherbourne v N Power
  An employee with Asperger’s syndrome was required to work in an open plan setting with a busy walkway behind him, which caused him to feel overwhelmed and distracted. An employment tribunal found that his employer had failed to implement reasonable adjustments to the physical workplace.
• Borg-Neal v Lloyds Bank
  A dyslexic employee, who was dismissed for using a racial slur in a training session, was awarded £500,000 after claiming his condition prevented him from finding an alternative phrase quickly.
• Jandu v Marks & Spencer
  A tribunal ruled that failure to adjust selection criteria for a dyslexic employee in a redundancy process was unlawful. The Claimant was awarded £54,000