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Neurodiversity and disability

Published On: November 1st, 2023By

Neurodiverse conditions can amount to a disability for employment law purposes. We’re seeing an increasing number of neurodiversity-related discrimination claims pleaded at tribunal.

Creating greater awareness, education and understanding around neurodiverse conditions will help foster more inclusive practices and help your managers support individuals appropriately – and avoid litigation. Here’s what you need to be aware of:

Training – the importance of educating managers and teams on neurodiverse conditions was highlighted in this case where an employee was successful in claiming disability-related harassment. Comments were made by the appeal officer accusing her of deliberately “masking” her autism – masking symptoms is a common practice amongst autistic individuals.

Medical support – the above case also highlighted the importance of obtaining occupational health or medical guidance on an individual’s neurodiverse condition. In this instance, it would have provided the employer with a clearer picture of the likelihood of recurring behaviour related to her condition and the risks associated with continuing her employment (she worked in a care setting with vulnerable children).

Reason for conductthis case shows that a tribunal was able to conclude that the effects of an individual’s disability (dyslexia and Asperger’s Syndrome) did not play any part in the conduct giving rise to a disciplinary process. The individual had been aggressive and disruptive to colleagues and argued this was a result of his neurodiverse condition. The tribunal disagreed and said it was a result of a “short temper” rather than his disability.

Hidden conditions – as discussed earlier in this series, many neurodiverse conditions are hidden or remain undiagnosed. Carefully understanding the root cause and reasons behind any performance or conduct issues needs to be approached responsibly to reduce potential discrimination risks and provide the necessary support.

Creating awareness, education and understanding around neurodiversity is why we’ve built our toolkit to help you and your managers support neurodiverse employees appropriately – see what’s included. 

This update is accurate on the date it was published, but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.