Neurodiversity in the workplace

17 April 2023

March saw the sixth annual Neurodiversity Celebration Week in the UK. In this article, we look at some recent employment case law related to neurodiversity and discuss how employers can respond to growing public awareness of this issue.

What is neurodiversity?

Neurodiversity is not a term of art, so there is no authoritative list of what it encompasses, but it is usually understood as incorporating conditions including autism, dyslexia, ADHD and DCD (dyspraxia). Sometimes other conditions are included.

An emerging issue for employment law

The diagnostic scope of many neurodivergent conditions has expanded over recent decades, with autism, for example, now understood as a “spectrum” encompassing more than 1% of the UK population, according to the National Autistic Society. Meanwhile, there has also been a significant increase in diagnoses. In the employment arena, one issue the tribunals are already facing, and which may be examined in an increasing number of cases in the future, is how to assess employee conduct which is prima facie misconduct but for which a neurodivergent condition is cited as a contributing factor.

This issue came before the Employment Appeal Tribunal (EAT) in two recent cases. In one case (McQueen v General Optical Council [2023] EAT 36) an employee claimed that his aggressive and inappropriate conduct towards a colleague had been caused by his disabilities (which included dyslexia, neurodiversity, symptoms of Asperger’s syndrome and left-sided hearing loss) and that the disciplinary action his employer had taken against him for this conduct was therefore discriminatory, since it was unfavourable treatment in consequence of a protected characteristic. The EAT upheld a judgment against the employee which found that, although his conditions did amount to disabilities, his conduct was not caused by these disabilities but rather by his short temper and a sense of resentment. His disabilities were therefore not related to the employer’s decision to discipline him, so no discrimination claim could proceed. Although the employee argued, on appeal, that his disabilities had been at least a contributing factor to his conduct and that this should be sufficient for the success of the claim, the EAT found that the tribunal had justifiably discounted any contribution on the basis of the medical evidence available.

In another case (Morgan v Buckinghamshire Council [2022] EAT 160) a supervising social worker was dismissed after being disciplined for inappropriate conduct (including giving a gift to a child and including inappropriate content in a case note) and brought claims of unfair dismissal and unlawful discrimination relating to her disabilities, which included autism and dyslexia. The original tribunal judgment tentatively accepted the idea of a causal link between the claimant’s disabilities and her conduct, although the employee had refused to undergo an occupational health report which could have substantiated this. In the absence of any firmer knowledge, the dismissal was nevertheless ruled to be a proportionate means of mitigating the risk of “further misconduct” by the employee. This judgment should be read against the employment context, in which the employee had oversight of vulnerable children and in which any impropriety, as she had been previously warned, could quite justifiably result in dismissal.

Reasonable adjustments

What both cases have in common is the crucial nature of reasonable adjustments based on appropriate medical evidence. In McQueen, the employer had already fully assessed and carried out a number of adjustments to take account of the employee’s disabilities and was therefore able to successfully argue that no required adjustments had been contravened during the course of the incidents for which the claimant was disciplined. In Morgan, the employee’s refusal to submit to an occupational health report meant that the employer had firmer ground on which to dismiss, since making adjustments was not possible in the alternative.

The term “neurodiversity” can better represent the complexities of mental disabilities and avoid an oversimplified characterization of certain conditions. It is of course possible that some people will identify as neurodivergent but not qualify as disabled in law. Nevertheless, the fact that many neurodivergent conditions are established in the medical literature as impairments and, in many cases, will have a substantial and long-term impact on a person’s ability to carry out normal day-to-day activities means that many neurodivergent people will be able to argue that they are disabled for the purposes of the Equality Act 2010. Therefore, considering reasonable adjustments for neurodivergent employees and candidates is certainly advisable, usually at the first possible opportunity, and employers should beware of taking any action which might amount to a detriment, including stereotyping someone by assuming that they will need to be treated differently. Asking employees and candidates what reasonable adjustments they may require is a good first step wherever possible.

We can help you address any employment concerns you may have in this developing area of law. For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.