What is the law around neurodiversity in the workplace?

The Changing Landscape

The key piece of legislation regarding neurodiversity in the workplace is the Equality Act 2010. This legislation, while admirable, is limited in both purpose and scope. Since the passage of the Act in 2010, there has been a major rise in the understanding of neurodiversity, the range of distinctly categorised neurodiversities, as well as the number of people with a neurodiversity diagnosis. For example, between 1998 and 2018, there was a 787% increase in the diagnosis of autism in the UK. 

Until the Equality Act is updated to reflect neurodiversity, employers and employees are stuck with somewhat confusing and vague legal protections. Neurodivergence itself is not a disability as recognised under the Act, although, in practice, employment tribunals have often found many ND or ND-adjacent characteristics as effective diabilities. According to the Act, someone can be classed as having a disability if, 

“the impairment has a substantial and long-term adverse effect on [the person]'s ability to carry out normal day-to-day activities.”

Clearly, then, many aspects of neurodiversity are protected under the Act, albeit in a way more implicit than explicit. 

Increase in cases

Perhaps unsurprisingly, given the vagaries of the Equality Act, there has been a rise in the number of Employment Tribunals referencing Neurodiversity. As the figure below shows, Discriminatory Judgements increasingly reference neurodiversity in their rulings. 

What is notable when examining these judgments is that the cases can be sorted into two main categories. The first of these is when an employee has been mistreated with regard to their neurodiversity. For example, in 2022, Marks and Spencer were forced to pay an employee with dyslexia £50,000 in damages after her employment was terminated, citing ‘mistakes’ in her written work that were deemed to be the result of rushing and a poor work ethic. Cases like these can be attributed to a company having little or no inclusion policies relating to neurodiversity. 

The second type of case, however, is when a company has improper neurodiversity policies. This type of case is growing in number. For example, in 2022, in Morgan v Buckinghamshire Council, it was found that the Council were guilty of harassment for accusing Morgan of ‘masking’ her autism. Thus, despite the Council winning the wider case over Ms. Morgan’s behaviour in her role, they were still found at fault for the mismanagement of Ms. Morgan’s neurodiversity. 

The two key takeaways from these statistics are firstly, that companies can no longer ignore neurodiversity, but they also must ensure they are following the latest best practices; secondly, it is no longer correct to rely exclusively on HR to ‘manage’ neurodiversity issues - it must be considered within every part of a business. 

What can employers do? 

So how can businesses ensure that they create a truly ND-inclusive workplace in the face of a broad and often confusing legal landscape? The following are the most important initial steps an organisation should take.

• Culture. Firstly - and most importantly - employers must begin taking neurodiversity seriously. This must ultimately come from the leadership. Many employees with neurodiversity are covered under the Equality Act, meaning organisations have a legal duty to make appropriate adjustments. 

• Policies. All HR processes must be ND-conscious. That means everything from recruitment, to management, to complaints, and beyond. Not factoring in neurodiversity is not only unethical but leaves you vulnerable to litigation. Tangible company policies are crucial to ensure a business pursues an ND-inclusive culture. 

• Training. All employees, regardless of management status, should receive training on neurodiversity. In the same way that gender equality in the workplace is the responsibility of every employee, so too must be neurodiversity inclusion. This must begin with the very basics of ND-awareness all the way through to detailed inclusion training.

Ultimately, therefore, it’s no longer possible to not run a neurodiversity-inclusive workplace (and, indeed, our previous blog showed why you wouldn’t want to). Moreover, out-of-date or weak policies may be as bad as no policies at all. So, if you were in any doubt, now’s the time to start thinking about neurodiversity in your workplace. 

 For neurodiversity training, HR policy guidance, and workplace audits, get in contact with Welcome Brain today.