Neurodiversity in the Workplace: New Best Practice Guidance for Employers
The Advisory, Conciliation and Arbitration Service (ACAS), which provides employers with best practice guidance about workplace relations, has recently published new advice on neurodiversity issues. It aims to help employers raise awareness of neurodiversity and create inclusive working environments.
Neurodiversity refers to the fact that individuals’ brains function and process information differently. Neurodivergent is the term used to describe an individual whose brain behaves differently to what may be considered “typical”. It is estimated that around one in seven people are neurodivergent. Common examples of neurodiversity include autism, attention deficit hyperactivity disorder (ADHD), dyslexia, dyspraxia and Tourette’s syndrome.
Neurodiversity and the law
There is no employment legislation which address neurodiversity specifically. However, some neurodivergent employees may be classed as “disabled” under the Equality Act 2010. This applies where an employee has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Nevertheless, because neurodiversity impacts individuals differently, employees with neurodivergent conditions will not always meet this statutory definition. On the other hand, neurodivergent individuals may still satisfy this definition even though they do not consider themselves to be disabled in the ordinary sense of the word.
Where an employer suspects that an employee’s neurodiversity may amount to a disability, they must comply with the usual duties that they owe towards disabled employees – such as the duty to make reasonable adjustments. This means that the employer should take reasonable steps to help the neurodivergent employee overcome the disadvantages caused by their neurodiversity. For example, this could involve providing an autistic employee with headphones to help them focus and avoid sensory overload.
In addition, employers could also face other disability discrimination claims if they were to treat a neurodivergent employee less favourably because of their condition (direct discrimination) or something arising from it (discrimination arising from disability). The ACAS guidance gives the example of an autistic employee who is excluded from work social events because they struggle to maintain eye contact when speaking to colleagues who interpret this as “weird and rude”. This is likely to amount to disability discrimination.
The benefits of recognising neurodiversity
Irrespective of whether an employee’s neurodivergence amounts to a “disability”, encouraging conversations about neurodiversity and supporting affected employees can often have positive impacts on productivity and working culture more generally.
However, some neurodivergent employees may be concerned that disclosing their neurodiversity may prompt a negative reaction or stereotyping. Therefore, employers should take steps to ensure that employees feel comfortable discussing neurodiversity and, even if they do not share their condition, to ensure that they can still receive the support that they need. This helps to ensure that employers can consider the most suitable adjustments to make and minimise the negative impact that masking their condition can often have on neurodivergent employees (both on themselves and their work).
In turn, an inclusive and supportive workplace can help to improve staff wellbeing, reduce absences/staff turnover and attract the highest quality candidates.
How employers can become more neuroinclusive
The ACAS guidance acknowledges that taking neurodiversity seriously and using precise language can assist with creating a neuroinclusive working environment. For example, it advises that employers should avoid using phrases like “suffering from” when talking about neurodiversity, which implies that neurodiversity is an illness and can make neurodivergent people uncomfortable.
In order to ensure that all employees are aware of neurodiversity and how to act inclusively, employers should consider providing specific training on the topic (particularly to managers) and/or running awareness campaigns within the business. Employers may also consider setting up a staff network for neurodiversity – allowing like individuals to connect and offer support to one another – and actively acknowledging the contributions of neurodivergent employees.
In addition, employers should also consider whether their recruitment processes are neuroinclusive. This is because some neurodivergent employees may benefit from, for example, receiving interview questions in advance or providing written answers instead of oral responses – or vice versa. In the recent case of AECOM Ltd v Mallon [2023], the Employment Appeal Tribunal upheld a decision that an employer had failed to make reasonable adjustments by refusing to allow a job applicant with dyspraxia to make his application orally rather than through an online form, because his dyspraxia made it difficult for him to express his thoughts in writing.
The Taylor Walton Employment team are hosting a free seminar for employers at St Michaels Manor in St Albans commencing at 9am on Thursday 27 March 2025 which will discuss the latest developments in employment law, including the new ACAS guidance and the legal issues surrounding neurodiversity. If you would like to attend, please contact us here to book your place.
Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.
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