Neurodiversity Discrimination in the workplace

If you have been discriminated against in the workplace because of autism, dyslexia or ADHD, you could have a case for employment discrimination under the 2010 Equality Act.

At Pearson, our employment solicitors are seeing an increasing number of clients who have claims against their employers, more and more we are dealing with neurodiversity discrimination employment claims.

“These are involving employees with ADHD and autism; for example, these types of cases are growing exponentially as more people are being officially diagnosed with such conditions and accepting that they are on the neurodivergent spectrum and have a case to answer,” said Partner and Employment Law Solicitor, Alan Lewis.

“It is estimated that 15% of the population is neurodivergent and identifies with one of the main types of neurodiversity.  Many employees diagnosed with neurodivergent conditions will satisfy the legal definition of disability set out in the Equality Act 2010 and will therefore be protected from discrimination of any kind,” he added.

What is neurodiversity?

Neurodiversity is often a ‘hidden’ disability and can affect an individual’s ability to carry out normal day-to-day working activities. If you have been discriminated against, you will get protection under the act against unlawful discrimination, harassment, and/or victimisation.

Types of neurodiversity conditions:

• Autism, or Autism Spectrum Conditions
• ADHD: Attention Deficit Hyperactivity Disorder or ADD: Attention Deficit Disorder
• Dyscalculia
• Dyslexia
• Dyspraxia, or Developmental Coordination Disorder (DCD)

Neurodiversity is essentially an umbrella term, but if you have any of the conditions above, you could qualify as disabled under the Equality Act 2010. However, we often observe that clients do not automatically consider their dyslexia or ADHD as a disability; it has been simply something they have lived with on a daily basis and in many cases, they have made lifestyle changes.

However, the UK 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.’

Neurodiversity in the workplace

Our employment solicitors see an increase in cases where:

1. Disciplinary proceedings

Disciplinary proceedings against employees who have had “meltdowns”, “outbursts” or acted “inappropriately”, where their conduct may have been linked to their medical condition.  In a nutshell, if an employee can establish their Autism/Aspergers/ADHD is sufficiently severe on the spectrum to amount to a disability, employers are under a duty to objectively justify any disciplinary action against them, regardless of how long an employee has been employed.

Invariably this will involve obtaining medical evidence and considering whether a lesser sanction than otherwise would have been administered would be appropriate.

2. Reasonable Adjustments

A failure by business owners to make reasonable adjustments in relation to an employee’s working arrangements, assuming they satisfy the test of disability. This could mean making arrangements for quiet spaces or modifying duties. In most of these cases, the cost to business owners would be modest in comparison to a successful employment tribunal resulting from disability discrimination.

If you are successful in a claim for disability your compensation could include injury to feelings, personal injury and loss of earnings. It should be noted that there is no statutory limit or indeed cap to compensation in disability discrimination claims as each case is judged on its individual merit.

“Employers need to learn more about how they can help their staff and recognise workers with any form of neurodivergence.  Employees should be able to operate in a workplace without discrimination, harassment and victimisation,” said Alan Lewis.

“It is also important for workers with a neurodivergent condition to not be afraid of stating that they consider themselves disabled, as if not it could affect their legal protection.”

Discrimination by association

In addition, if you care for or are associated with someone who has a disability, then you are protected from ‘discrimination by association’ under the law.

This is a catch up game at the moment as a lot of workplaces are not inclusive of neurodivergent variations and this can create feelings of exclusion, result in underperformance, pressures and victimisation, which can then lead to discrimination.

As stated, disability discrimination cases regarding neurominorities are increasing; this is perhaps due to heightened awareness, better diagnosis and staff members feeling they are more comfortable speaking about it.

Supporting neurodiversity in the workplace

Your employer should make reasonable adjustments; these may include frequent breaks, a stress free environment to work in, quiet spaces to help focus and avoid distraction, support for working from home, any IT adjustments necessary, help with work based social interaction and business owners being mindful of any terms and language used in the workplace which may be disparaging to you.

Employers need to make sure staff are aware of their policies, and if they fail to provide an all inclusive working environment, then employees who may have been discriminated against are justified in making a claim.

Examples of recent awards made to employees include:

• An award of £20,000 for victimisation.
• A successful indirect disability discrimination claim by an autistic employee working at a national company when reasonable adjustments were not made.
• The employment tribunal upheld a claim when an employee was dismissed for gross misconduct for an aggressive outburst; this was linked to his medical condition and therefore arose from a ‘disability’.

Tribunal claims often arise when staff feel victimised, bullied, sidelined or unsupported in the workplace and employment tribunals citing autism, Asperger’s and dyslexia are increasing. If you believe you have been dismissed for reasons connected to autism, ADHA, dyslexia or any other form of disability or neurodivergence then you may have a claim.

How can we help

For legal advice on any issues in your workplace or if you have a potential discrimination claim against your employer contact our employment solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.