The success of Neurodiversity Celebration week this year has encouraged many employers to celebrate the neurodiversity of their own workforce and to consider how best to nurture neurodivergent employees.
Neurodiversity – the terminology
“Neurodiversity” refers to the neuro-cognitive variability within the human population, recognising that every human has a unique nervous system with a unique combination of abilities and needs.
The term is increasingly used in a move away from the medicalised concept that neurodivergent diagnoses such as autism, ADHD and dyslexia are “disabilities” or “illnesses” which impair people and which need to be cured. The concept of neurodiversity recognises that neurodivergent individuals have been disabled by a world that can be inaccessible as it is built for ‘normal’ or neurotypical brains. We should be trying to fix the environment, not the person, in order to ensure that everyone is able to work to their best potential; in other words, we should be adapting the environment to the needs of the individual, rather than expecting the individual to adapt to the environment.
What are the benefits of neurodiversity at work?
The benefits of having a workplace that embraces neurodivergence are much the same as the benefits that come with having a diverse and inclusive workplace: inclusion benefits everyone and employers will likely reap the benefits of having happier, more fulfilled employees who feel able to bring their full selves to work. In time, this will also allow employers to harness the full potential of their workforce, which is likely to provide a competitive advantage to the business.
Neurodivergent employees may bring new perspectives and ideas to a business because they often think very differently from neurotypical employees. By definition, neurodivergent employees are not all alike so the product of this may vary. Embracing neurodivergent colleagues could mean access to a number of additional skills including, but not limited to, focus, creativity, mathematics, expertise, innovation and lateral thinking.
How does this fit with the law?
So how does this apply to the workplace and employment law? Although neurodiversity will already exist in every workforce, the impact of some conditions may be significant enough that the condition falls within the definition of a “disability” for the purposes of s.6 of the Equality Act and the employee is protected against discrimination.
Conditions will qualify for such protection if an employee suffers from a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities. Certain diagnosed mental health conditions such as depression, anxiety and autism are likely to meet this bar. Employees who suffer from a condition which satisfies the definition of a “disability” within the Equality Act will be able to seek a remedy in the Employment Tribunal if they are subjected to:
- direct discrimination (being actions or omissions of their employer because of their disability)
- indirect discrimination (where there an employer operates a “provision, criterion or practice” which places those suffering from the employee’s disability at a particular disadvantage)
- discrimination arising from their disability (for example, where an employee has been subjected to a performance management process for reasons connected with their disability), and/or
- a failure by the employer to make reasonable adjustments to avoid or mitigate their disadvantage at work
Discrimination law has at its foundation the concept of “impairment”, as opposed to the social model as set out above. This means that, for vulnerable employees to be protected under the law, they must be labelled as being “impaired” in some way which prevents them from carrying out “normal” day-to-day activities and implies a duty on employers to obviate barriers and make adjustments to assist these individuals’ experiences at work.
However, as well as considering reasonable adjustments for employees whom they know to be suffering from a “disability”, employers would be wise to consider how they can proactively support and nurture the neurodiversity in their entire workforce – and well before learning that employees have been diagnosed with a mental health condition or other formal medical neurodivergent diagnosis. This is because, due to the length of NHS waiting lists and the stigma around mental health, obtaining a formal diagnosis is becoming more difficult. Adults are increasingly being encouraged to self-diagnose and employees’ self-diagnosed conditions are being accepted by Tribunals.
In addition, every employee has their own strengths and weaknesses and there will likely be a number of employees in every workforce who do not meet the statutory definition of “disabled” but who struggle with certain aspects of the working environment. It may be that making adjustments to working practices (even if the employer does not have the legal obligation to do so) helps facilitate employees to achieve their full potential and, in turn, to be more productive in their output. For example, some people find working in open plan spaces distracting, while others find complete silence makes them anxious. Where possible, therefore, employers may wish to anticipate these needs proactively, and before employees raise concerns, in order to get the best out of the workforce.
In terms of legal guidance and help for employers, ACAS have some archived guidance on neurodiversity in the workplace which covers topics such as: types of neurodivergence; steps employers can take to support diversity in the workplace; and tips on how to manage staff with ADHD, autism, dyslexia, dyspraxia and other forms of neurodivergence. In addition, occupational health providers can provide support in assessing individual employees’ needs in the workplace and suggesting reasonable adjustments that can be made – although their advice may be limited if the employee has not obtained a formal diagnosis.
In reality, the most practical way forward may be for employers to engage with their workforce and understand how employees can be supported to work in a way which enables them to maximise their productivity, taking into account different learning and working styles.
Neurodiversity in the workplace
What can employers do to embrace neurodiversity within the workplace?
1. Recruitment
It’s an accepted view that a neurodivergent workforce pays dividends, and recruiting those that think differently has commercial advantages, as some individuals tend to excel in certain areas (e.g. mathematics) in which other employees may not, and that they can therefore be a valuable business resource. While, optically, recruitment schemes which actively target certain types of neurodivergent individuals (for example, targeting those with a dyslexia diagnosis) will increase the number of neurodivergent individuals in employment, studies have shown that this kind of recruitment can be unhelpful. In particular, the individual may be forever labelled as “the neurodivergent employee” and assumptions may be drawn about their skillset and their ability to progress within the organisation.
Instead, some employers are looking to adapt normal recruitment processes and roles to be more inclusive to the needs of neurodivergent individuals. Most people find the recruitment process stressful and neurodivergent individuals can find it particularly difficult, given the importance placed on social interaction and timely responsiveness to verbal questions under pressure. Employers may consider making small adjustments from the beginning of the process to make it more inclusive for neurodivergent employees. This might include presenting materials in a format that is easy to read and digest, informing applicants in advance if they will be required to complete any tests, allowing breaks during an interview, and encouraging the early disclosure of neurodivergence so that appropriate adjustments can be made to the process.
2. The workplace and employees’ working environments
Many businesses are already making changes to their working practices following the pandemic and are introducing hybrid working which can itself reduce pressure on neurodivergent employees. For example, it might remove the stress of commuting, allow the individual to work in comfortable surroundings, and optimise their productivity if, for example, they require quiet surroundings to complete a specific task. However, remote working might also be a stressor for some neurodivergent employees who find it hard to concentrate at home or to cope with lack of structure and consistency. To assist, employers could implement clearly structured work schedules and provide technology and workstation furniture for those working remotely.
Some employers are also making physical changes to their workspaces, as hybrid working has led to a reduced requirement for office space. Many are taking the opportunity to introduce other changes that would embrace neurodivergence in the workforce without having to make obvious changes to certain employees’ workspaces that might highlight that they were struggling or otherwise “label” them. For example, businesses could introduce certain areas of the office for different kinds of working practices, such as quiet working spaces, sound-proof booths for calls and group working spaces for collaboration, enabling employees to choose to work in a way which best suits them.
Employers may also wish to review their workplaces from the perspective of a neurodivergent employee who may have sensitivity to sensory input. Most standard ‘office’ environments feature multiple stressors such as buzzing lights, interruptions, kitchen smells and the expectation of small talk with colleagues. Implementing a strict dress code may also have a negative impact to some employees, as some neurodivergent employees may find it difficult to concentrate in more formal, and often more uncomfortable, clothing. By considering these issues from the outset, an employer may be able to anticipate particular challenges, reducing the need for employees to raise concerns about their working environment. This will have a positive impact on general employee wellbeing, and may even reduce absences.
3. Policies and procedures
Employers may wish to consider having a neurodiversity policy, which could be one way of demonstrating that the organisation has thought of the differing needs of its employees and has adapted its processes, or is willing to adapt them, to cater to different employees’ requirements. Ideally managers and those in HR should be given training on any such policy, so that it can be effectively implemented. Training could include educating managers about the common challenges shared by neurodivergent employees, such as the difficulty some autistic people have in interpreting non-verbal communication.
Having said this, neurodiversity is such a broad concept that it may be difficult to draft a sufficiently precise policy that meets the neurological needs of an entire workforce. There is also a danger that generalisations, assumptions and stereotypes about neurodivergent employees are made in the policy.
So what does this all mean?
Embracing neurodiversity is an aspect of the employment relationship where businesses and employers might want to consider going further than the law requires. The legal protections in place for “disabled” employees have not yet caught up with the concept of neurodivergence but the benefits of taking a more imaginative, proactive approach to embracing and nurturing neurodiversity in the workforce are tangible. It has been shown to increase wellbeing, decrease absences and increase productivity – it’s not just a tick box exercise.
Rebecca Berry