Autism – The law and neurodivergence in the workplace

Working together

In this article, we take a look at neurodivergence in the workplace and how employers can both comply with the law and support neurodivergent workers.

What is neurodiversity?

Neurodiversity is a broad term for the infinite number of ways the human brain can operate, leading to diverse ways of thinking, retaining memories, and paying attention.

People work best when they are supported in different ways. Those with dyslexia, ADHD or autism often struggle in a traditional workplace environment to perform to the best of their ability. Understanding neurodiversity can help employers make better decisions and get the most out of their team.

Supporting neurodiverse employees

One of the biggest problems for employers is that employees often do not feel comfortable disclosing their neurodiverse condition in the workplace, or they may be undiagnosed. When employers fail to actively support neurodiverse workers, they could miss out on the benefits of thought diversity, increased employee productivity, and even struggle to hire the best talent.

Neurodiversity and the law

It is important for employers to understand that an employee’s neurodiversity could qualify as a disability under the Equality Act 2010. However, not all neurodivergent employees will consider themselves to have a disability. Under the law, employees have the right to identify as having a disability, or not to identify. But, the legal definition of ‘disability’ under the Equality Act 2010 means that neurodivergent workers are likely to meet the conditions. Government guidance states:

‘A disability can arise from a wide range of impairments which can be … developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia.’

If an employee identifies as having a disability, they are provided with certain rights and protections under the law. Employers must make reasonable adjustments to allow them to perform their best work and protect them from discrimination, harassment and victimisation.

Similarly, workers are protected from ‘discrimination by association’. This means that if an employee is associated with a person who has a disability, such as a partner, child, or person they care for, they are also protected from discrimination, victimisation and harassment under the law.

Workers with a neurodivergent condition should also be wary of stating that they do not consider themselves disabled, as this could affect their legal protection.

Reasonable adjustments

Many reasonable adjustments may be required to help neurodivergent workers perform best. Typically this may include things related to focus, attentiveness and distraction. For example, allowing the worker to take shorter breaks throughout the day, providing them with a space free from distraction or enabling them to work from home and support with social interaction in the workplace. Support for neurodivergent workers should be assessed on a case by case basis.

To discuss this, or any other employment related matter, please contact Jane directly on 01483 366610, email info@hartbrown.co.uk or start a live chat today.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Jane Crosby

Partner, Head of Dispute Resolution & Accredited Mediator

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises...

Jane Crosby -Head of Dispute Resolution

Partner, Head of Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises in employment Law and commercial litigation and brings more than 15 years' experience to her role.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.