Supporting neurodiverse employees

Nick Henderson at compliance eLearning specialist VinciWorks describes the next imperative for business leaders

In the fast-evolving landscape of workplace inclusion, the issue of neurodiversity discrimination has emerged as a pressing concern. Neurodiversity refers to the natural variations in human brain function that influence how we interact with the world and process information. As many as 1 in 7 workers are neurodivergent, but a significant number of businesses are failing to meet the needs of a wide range of staff. 

Recent research highlighted that 40% of employers can’t say for sure if their organisation is neurodiversity-friendly. Nearly a quarter of workplaces believe they lack active support for neurodivergent employees. Meanwhile, less than 10% of businesses plan to incorporate neurodiversity training into their D&I efforts.

Complicating the field of neurodiversity compliance is the fact that the classification of neurodiversity as a disability is complex. While some individuals may perceive their neurodivergence as a disability, others may not, or may only consider themselves disabled in certain environments.

In the UK, neurodiversity is covered under the protected characteristic of disability in the Equality Act 2010. This means that neurodivergent individuals are lawfully protected from discrimination, harassment, or victimisation based on their neurodiversity under the Act.

Diagnosis can also be a very difficult and lengthy process, and quite often expensive. That means it’s not as simple as treating neurodiversity as a straightforward medical issue, because not everyone who is neurodiverse or will be protected by legislation, will have a formal diagnosis. 

This complication has caused an uptick in employment tribunal cases involving allegations of neurodiversity discrimination, with a staggering 102 cases reported in the past year. 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.

In one case, AECOM Ltd. vs. Mallon, a job applicant with dyspraxia asked to make his application orally instead of through an online form. The employer wanted a lengthy explanation about why he couldn’t complete the form written in an email, despite the applicant saying he had trouble with written communication, and he won the tribunal. The organisation should have made reasonable adjustments and called the applicant about his communication issues.

In another tribunal, Duncan vs Fujitsu, an employee who had problems with oral communication was found to be discriminated against because they had to call in when sick, instead of writing, and wasn’t given a written agenda before meetings. Also, Fujitsu harassed the employee and violated their privacy by discussing their sickness absence with the employee’s parent without consent.

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.

The number of neurodiversity discrimination cases at employment tribunals has quadrupled in the last five years. The average cost of defending a tribunal is now £8,500, that’s before any award the business might have to pay, or the claimants legal fees if the employee wins. 

Although employers are becoming increasingly aware of neurodiversity, this awareness has not yet translated into effective strategies, and this leads to discrimination cases related to neurodiversity reaching employment tribunals. He emphasised that employers should allocate resources to develop a more sophisticated diversity and inclusion strategy, one that explicitly incorporates neurodiversity.

Supporting neurodivergent employees doesn’t require expensive overhauls. It’s about fostering a culture of empathy and understanding. Simple accommodations like flexible work arrangements, noise-cancelling headphones, and clear communication protocols can make all the difference for neurodivergent individuals. 

It won’t always be as straightforward as a person disclosing their neurodiverse condition, because diagnosis can be such a difficult and lengthy process. 

However if an employee does want to benefit from the legal protections, then there’s an expectation that they would have to disclose their condition to their employer. Otherwise the employer is unlikely to be in a position to discuss reasonable adjustments or indeed ensure that the protections are upheld. 

Nevertheless, it’s incumbent on employers not to gatekeep reasonable adjustments and protections that could be of benefit to employees. 

To better support neurodiverse employees, organisations should:

Raise awareness: Employers must go beyond merely implementing policies. They should actively raise awareness among employees about various neurodiverse conditions to foster understanding and empathy.

Regular training: Provide regular training: this can help employees and managers better understand the unique challenges and strengths of their neurodivergent colleagues.

Tailored accommodations: Implementing tailored accommodations that meet individual needs, such as adjustments in the workspace or work processes, can go a long way to support neurodivergent employees. There are plenty of accommodations that can be put in place with little to no investment, such as flexible working.

Support for line managers:  An employee’s underperformance might be misinterpreted as a capability issue, when really the employee might have a need for a reasonable adjustment. Ensuring that line managers receive adequate support and training to oversee neurodivergent employees is crucial to prevent performance-related issues from being misinterpreted as capability issues. Reasonable adjustments should be supported even when there is no formal diagnosis or evidence.

Clear policies: Develop clear policies that address the principles and processes of supporting disabled and neurodivergent candidates and employees. Having a specific policy in place can help organisations avoid unnecessary and expensive tribunals.

Diversity and inclusion training: Managers should receive training on unconscious bias and neurodiversity to ensure that their decisions are not influenced by stereotypes. Creating an inclusive environment where neurodiverse employees feel supported is crucial.

Review every stage: HR teams should review every stage of the employment life cycle, from recruitment onwards. This includes making adjustments to the recruitment process and considering the unique needs of neurodivergent candidates, including adjustments to, for example, applications and interviews, and onto workplace adaptations.

Effective communication: Ensure that neurodiverse individuals feel comfortable expressing their needs and preferences by initiating proactive discussions on the topic, asking and then providing what neurodiverse individuals say they need to be able to carry out their work productively. HR should work with different departments to provide necessary accommodations promptly.

Nick Henderson is Director of Learning and Content at compliance eLearning specialist, VinciWorks

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