Neurodiversity and increasing risk of tribunals

Sara Henna Dahan at VinciWorks takes a deep dive into the growing importance of neurodiversity, the risks associated with neglecting it, and the surge in employment tribunals related to neurodiversity discrimination

 

In the fast-evolving landscape of workplace diversity, the issue of neurodiversity discrimination has emerged as a pressing concern.

 

Recent data reveals that employment tribunals have witnessed a significant uptick in cases involving allegations of neurodiversity discrimination, with one study showing that industrial neurodiversity tribunal cases from 2018-2022 quadrupled compared to the number of cases from 2003-2017. 

 

Even as organisations are increasingly aware of the benefits of a neurodiverse workforce and the competitive edge that this can bring, paying lip service with empty words policies is not enough: organisations must adopt proactive measures to ensure the well-being and fair treatment of neurodivergent employees.

 

The neurodiversity discrimination landscape

According to research by Fox & Partners, the cases brought in tribunals encompass a broad spectrum of neurodiverse conditions. A total of 30 cases cited dyslexia, 25 mentioned autism, 19 related to ADHD, and 14 each revolved around dyspraxia and Asperger’s syndrome. 

 

One common thread among these cases is the perception that neurodivergent employees’ performance or behaviour in the workplace is unfairly assessed due to their condition. This has raised concerns about whether employers are adequately equipped to accommodate and support neurodiverse individuals or if they are inadvertently contributing to an environment where discrimination claims thrive.

 

More proactive measures needed

A Deloitte study showed that 10-20% of the world’s population is estimated to be neurodiverse. A growing number of employers see neurodiversity as a strength in the workplace, but more work is needed to translate this awareness into effective strategies.

 

While several pioneering companies have made meaningful reforms to their HR processes to attract and retain neurodiverse talent and are already seeing the benefits, much of the neurodiverse talent pool remains untapped, and those employed often face challenges and fear discrimination.

 

As such, too many discrimination cases related to neurodiversity are reaching employment tribunals. Employers must focus more on allocating resources to develop a more sophisticated diversity and inclusion strategy that explicitly incorporates neurodiversity.

 

Managers must be trained to discuss adjustments proactively with employees to avoid claims. A Harvard Business Review article on this subject notes that while most accommodations, for example, clear and specific instructions or noise-cancelling headphones, are not expensive, employees need to shift their thinking and tailor individual work settings more than they otherwise might.

 

Everyone benefits

Supporting neurodiverse employees not only ensures fair treatment but also leads to increased innovation and decision-making. A study from Birkbeck’s Research Centre found neurodivergent employees reported remarkable abilities and work strengths, with 80% reporting hyperfocus, 78% creativity, 75% innovative thinking, 71% detail processing, and 64% authenticity at work.

 

Professor Nancy Doyle, one of the professors who led the research, said: “These qualities speak directly to the World Economic Forum’s reported top skills for 2025. The world of work needs people who can create and are divergent thinkers – neurodiverse workers bring exactly this!”

 

Real cases, real consequences

Several recent cases shed light on the challenges neurodivergent individuals face in the workplace, emphasising the need for proactive measures. In AECOM Ltd v Mallon, the Employment Appeal Tribunal (EAT) upheld a judgement that an employer failed to make reasonable adjustments for a job applicant with dyspraxia who requested to make his application orally instead of completing an online form.

 

Similarly, in Duncan v Fujitsu Services Ltd, the employment tribunal held that an employer failed to make reasonable adjustments for an employee with an Autistic Spectrum Condition by insisting on staff mainly having work discussions orally.

 

The importance of understanding the specific challenges faced by neurodivergent individuals is evident in these cases, reinforcing the need for tailored accommodations.

 

The case of Borg-Neal v Lloyds Banking Group adds a fascinating layer to the conversation. In this case, a manager was dismissed for using the whole “n” word in a race awareness training session. The Employment Tribunal found that this was disability discrimination because the manager’s dyslexia impeded his ability to express himself properly.

 

This case underscores the complexity of balancing conflicting equality issues, where the pursuit of creating an inclusive environment intersects with challenges posed by different neurodivergent conditions. The case also highlights the need for employers to navigate such situations carefully, considering each individual’s unique circumstances while upholding a commitment to diversity, inclusion, and a respectful workplace culture. 

 

Importance of training and policies

As the number of neurodiversity-related tribunal cases continues to rise, employers must prioritise training programs for their staff. The cases mentioned above underscore the significance of managers having a basic knowledge of the challenges faced by neurodivergent individuals in common workplace processes.

 

In addition, having clear neurodiversity policies in place can serve as a guiding framework for employers and employees alike. These policies should outline the commitment to diversity and provide practical steps for making reasonable adjustments, ensuring fair treatment, and fostering an inclusive work environment.

 

The increasing prevalence of neurodiversity-related tribunal cases is a stark reminder that organisations must go beyond superficial commitments and actively implement strategies to accommodate and support neurodivergent individuals.

 

By prioritising training, adopting neurodiversity policies, allowing for reasonable adjustments and fostering an inclusive culture, employers can reduce the risk of discrimination claims and harness the unique strengths and talents that neurodivergent individuals bring to the workplace.

 

The time to act is now, and the benefits extend far beyond legal compliance—towards a more innovative, diverse, and successful future for businesses.

 

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Sara Henna Dahan is DEI expert and Learning and Content Manager at VinciWorks

 

Main image courtesy of iStockPhoto.com