Reasonable adjustments and neurodivergence

Neurodivergence encompasses a range of conditions that most people have heard of –   including autism, dyspraxia, ADHD and dyslexia. Neurodivergence is an umbrella term, encompassing a wide range of conditions, which all have differing and uniquely personal impact on the individual affected. This can make it challenging when considering whether an employee is protected under the Equality Act 2010 definition of disability.

Is neurodivergence a disability?

It is likely that many neurodivergent workers will satisfy the Equality Act 2010 definition of disability – having a mental impairment which has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. Normal day-to-day activities can include social interaction and communication.  If the adverse effect is more than minor or trivial, the definition is met.

The employment tribunal concentrates on the impact of the condition rather than its precise medical diagnosis when deciding whether a person’s neurodivergence amounts to a disability.

Do workers want to be considered disabled?

Meeting the legal definition of disability gives neurodivergent workers important rights and protections at work. These include:

• The right to reasonable adjustments
• The right to not be discriminated against
• The right not to be treated unfavourably for a reason related to their neurodiversity (unless such treatment can be objectively justified)
• The right not to be victimised or harassed because of their neurodiversity.

Employment tribunal cases involving neurodivergence are on the rise. Many of these cases involve claims of failure to make reasonable adjustments. Where an employer is aware (or ought to be aware) of an employee’s neurodivergence as a disability, and a ‘provision, criterion or practice’ (PCP) places the employee at a substantial disadvantage, then the employer must make reasonable adjustments to remove that disadvantage.

Khorram v Capgemini

A recent example of this was the case of Khorram v Capgemini, where an employee disclosed her diagnosis of ADHD to her employer and explained that the condition significantly impacted her executive functioning, particularly in managing unstructured tasks, coping with ambiguity, and handling excessive multitasking.

In this case, the PCPs were requiring multitasking and requiring deadlines to be observed which were found to place her at a substantial disadvantage. Her employer failed to make the following reasonable adjustments:

• setting achievable and realistic tasks
• failing to provide neurodiversity and AHDH awareness training to her colleagues
• failing to implement coaching for the Claimant on time management and communication.

Top tips for employers

Employers should aim to create a workplace where neurodivergent employees feel safe to come forward and be visible. Once visible, you will be better placed to support them and avoid misunderstandings at work. Here are some tips for how to do this:

• Raise awareness of neurodivergence. Present it positively – focusing on the benefits of a neurodiverse workforce.
• If an employee tells you they may be neurodivergent, don’t be rigid in your response. Listen to their assessment of their condition and act on it to adjust their work, taking advice from occupational health as necessary.
• Train managers to talk openly about neurodivergence. This will create a ‘safe space’ where employees are more likely to be themselves. Teach the importance of abandoning stereotypical assessments.
• Bring neurodiversity within wider discussions on Equality, Diversity and Inclusion.
• Send out the message that you are neurodivergent allies – and that the business provides a safe space for neurodivergent individuals. This will have a dramatic positive impact on the well-being of affected employees.

Further reading

• What is a Provision Criterion or Practice (a “PCP”)? – Tribunal Claim

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