Keeping up to date

But with the right tools, knowledge and awareness, managers can confidently approach conversations about neurodiversity and provide colleagues with the support they need. Here are some of our tips:

Choose a setting – find a private, neutral space (outside the workplace if needed) free from interruptions and distractions, and clear your diary to make time so you don’t appear rushed. Keep your body language open and non-confrontational – remember that some neurodivergent individuals may find it difficult to read ‘typical’ social cues.

What to say – ensure you’re able to actively listen to what the individual is sharing. Ask open questions to encourage discussion and avoid making assumptions or comparisons with your own experiences (unless you have the same condition, of course). Following a clear agenda for the conversation will help to keep you on track. We have one in our toolkit.

Objectivity – be aware of their feelings and experiences, even if they differ from yours. Avoid your own expectations entering the conversation of how they could be dealing with their neurodiversity.

Support rather than solutions – be knowledgeable about sources of support that are available (EAP, charities etc.) and know who to signpost them to if needed. Encourage individuals to share what might help them with their neurodiversity instead of jumping to solutions that may not be appropriate.

Keep an open dialogue – agree and diary when you’re next going to check in, and agree on what they may want to share with their team about any changes being made. If an individual is off sick, stay in touch and carry out a return-to-work meeting when they return.

Record – keep a written record and notes of conversations (including dates, times and what was discussed). An accurate paper trail is vital if you need to rely on your records in the future.

Employment tribunal statistics

2022/23 costs and compensation:

• Disability discrimination claims received the largest average award (£45,000) compared to other discrimination claims
• The highest maximum award was £1,770,000 for disability discrimination
• The mean award for unfair dismissal was £12,000 across 790 claims receiving compensation

Auto-enrolment bill receives Royal Assent

The Pensions (Extension of Automatic Enrolment) Act 2023 gives the Secretary of State the power to make two key changes:

1. To reduce the age for being automatically enrolled into a pension scheme (from 22 to 18 years old); and
2. Remove the lower earnings limit for contributions meaning auto-enrolment contributions start from the first pound, not just those over £192 per week.

We currently have no set implementation date but will update you when we have more details. Obviously, there is nothing stopping you from adopting the changes before the legislation comes into force.

Data Protection and Digital Information Bill No.2

The government’s aim is to simplify the UK’s data protection framework – in particular, they’re suggesting that record keeping of personal data will only be required where processing results in a high risk to the rights of individuals (the Information Commissioner’s Office will need to publish guidance on what constitutes ‘high risk’).

Employers with less than 250 employees are exempt from record-keeping duties unless their data processing activities carry a high risk to the rights of individuals. The bill is currently working through the House of Commons and is due its third reading stage.

People dates for your diary 

21 November – Carers Rights Day | Raising awareness of rights and challenges of unpaid carers

25 November – White Ribbon Day | Preventing violence against women and promoting gender equality

07 December – Christmas Jumper Day | Save the Children’s annual fundraising event

02-08 December – National Grief Awareness Week | Supporting those who may be grieving and create better understanding of the grieving process

If you have a colleague who explains they’re neurodivergent (or you suspect may be undiagnosed) you’ll need to know more.

With neurodiversity comes terminology unfamiliar to some. Here are the key terms you may hear and what they mean:

• Neurodiverse – the concept that humans’ brains work in many different ways and there’s no singular ‘right’ way of thinking, learning, processing information or behaving.
• Neurodivergent – people who have differences in their neurological development and functioning.
• Neurotypical – someone who fits the societal ‘norm’ and has typical neurological development and functioning.

Neurodiverse conditions can include autism, ADHD, ADD, dyslexia, dyscalculia, dyspraxia (difficulty with reading, maths, and coordinated movements respectively) and many more.

Each condition is different and has different symptoms. Many people remain undiagnosed – it’s estimated that 700,000 people in the UK are autistic but undiagnosed. Knowing the signs of possible neurodivergence is important – watch out for (but not limited to):

• Physical – sensory differences, repetitive behaviours, pacing, physical tics.
• Emotional or behavioural – low attention span, intense curiosity, difficulty communicating, sensory sensitivities.
• At work – rapid speech, impulsive actions, hyper-focus, easily distracted, difficulty dealing with change.

We explain how simplifying the redundancy process creates better business and people outcomes, specifically:

• Exactly what ‘simplifying’ the process means for your business and people
• How to leverage technology to create a smoother and more compassionate people experience during redundancy
• How a simplified process will allow you to manage more effectively the mental health and productivity impact of a redundancy process

The session includes employment law, HR technology, outplacement and coaching expertise from across our Empowering People Group to share unique insights covering every stage of the process. Definitely worth a watch!

Background

The employee was experiencing serious menopause symptoms resulting in her working from home two days a week. Her symptoms meant she arrived late to work on one occasion and was questioned aggressively by her manager who suggested her menopause symptoms were an “excuse for everything” and referred to her as an “old biddy”. She subsequently raised a grievance and was signed off work. During this time her remote working access was cut off, leading to her resignation.

The tribunal held that the behaviour had violated her dignity and upheld her claims for harassment and unfair dismissal, awarding £37,000 in compensation.

Practical takeaways

Proactive support – supporting employees experiencing menopause symptoms begins with understanding. Everyone is different, so having supportive conversations and securing expert guidance (such as occupational health) means you can provide the employee with the specific support they need.

Raising awareness – it’s currently Menopause Awareness Month so no better opportunity to introduce a menopause policy or shout about the one you’ve got! You can access ours on Intelligent Employment. The more awareness around the topic the easier it is to build a culture of understanding, support those affected, and ensure managers have the confidence to deal with situations appropriately and lawfully.

Training – great policies often fail without training to back them up. Around 77% of businesses still don’t train line managers about menopause. Not only does training raise awareness, but it also shows that you’re serious about support and ensuring your managers are able to give the help where and when it’s needed.

Future guidance – after a series of cases involving the treatment of individuals with menopause symptoms, the Equality and Human Rights Commission will be launching new guidance for employers on supporting employees going through the menopause.

A new Supreme Court decision now means that three-month gaps no longer prevent or limit the extent of claims. Tribunals will now look for a ‘common reason’ for underpayments (such as applying the incorrect formula for calculating holiday pay) to determine whether deductions are part of a linked series. This decision is important for employees who work overtime or are paid commission where holiday pay can often be difficult to calculate and claims can be common.

Practical takeaways

Holiday pay audit – if you think you may be open to challenge for how you’ve historically calculated and paid holiday pay, auditing your records will give you a clear picture of your potential exposure for an unlawful deductions claim and help inform your next steps.

Time limit to bring a claim – any claim must still be brought within three months of the last deduction. In England, Scotland and Wales any back pay can only go back two years, whereas it can go back to 1998 for those in Northern Ireland.

Get it right from now – ensuring you’re calculating holiday pay correctly in light of this decision (including regular overtime and commission etc.) will mean that you can effectively start the three-month ‘count down’ now. Ensuring employees are receiving the correct payments could reduce any appetite to litigate for holiday back pay.

Particularly important if you have any zero-hours contracts, the new right introduced by The Workers (Predictable Terms and Conditions) Act 2023 will apply to:

• Workers whose existing working patterns lack certainty in terms of the hours or times they work;
• Workers on fixed-term contracts of 12 months or less (who are able to request a longer fixed-term period); and
• Agency workers (who can make a request to the agency or the hirer).

Here’s what we know so far about how the new right will work in practice:

Length of service – workers will need 26 weeks’ service before making a request (these will not need to be continuous).

How many requests – workers can make up to two requests each year.

What should a request look like – any request must be specific as to the change being applied for (hours of work, days of work, period of engagement, for example) and the date the change should take effect.

Dealing with requests – you will need to deal with any requests in a reasonable manner (yet to be defined) and notify the worker of your decision within one month.

Refusing requests – there are currently six specific grounds for refusing a request listed in the Act (such as the burden of additional costs). More may be added.

Accepting a request – you must offer the new terms within two weeks of granting the request. You must not make any detrimental changes to other terms at the same time as making the required changes arising from the request.

Consequences of getting it wrong – we’ll need to wait for the regulations for concrete detail, but we can assume that breaching the new requirements could give rise to compensation, likely up to eight weeks’ pay, if a claim is brought at tribunal (along with all the associated legal and reputational costs). We’ll cover this in more detail in our following updates.

• female colleagues being asked how they deal with juggling work and family
• female colleagues left to do the tidying up after meetings
• calling females ‘guys’ when you’re addressing a group

Even if most employees consider these are OK, maybe there’ll be one that says they’ve been subjected to discrimination and/or harassment. And with each of the above, they have a point. Times change. Laws move on. People expect more. People know more.

Our view is that if a concern is raised, an expedient, thorough, and balanced investigation is essential. Then, where liability is established, action must be taken swiftly – both legally and culturally. Learnings must embrace change and include effective policies which are trained upon.

Discrimination in whatever form creates division, poor performance, sadness, and inequality. Clearly, recent press has highlighted that these (and more) are very real experiences within the workplace. Get in touch to talk about any employment law support you might need.

Compare and contrast – the suitability of a role is determined by comparing the individual’s current ‘at risk’ role with the role available. Salary, place of work, skills required and aptitude for the role are all factors you can use to determine whether the available role is a suitable alternative.

Be specific – it’s not good enough just to give the employee a list of available roles – you need to search out the roles that could be suitable alternatives.

Bigger picture – if you’re part of a group of companies, your search for suitable alternatives should be group-wide.

First in line – if the ‘at risk’ individual is on maternity leave, they must be offered the suitable alternative role ahead of any other individual who might also be suitable for the role. Also, watch out for new legislation that extends this right.