The law and neurodivergence in the workplace: World Autism Day

Simran Lalli

Article written by Simran Lalli, Solicitor, Employment department

World Autism Awareness Day will be celebrated on Saturday 2 April 2022, and provides an opportunity for employers to learn more about assisting workers with Autism Spectrum Disorder, a form of neurodivergence. 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 ways which are best suited to them. Those with dyslexia, ADHD or autism can struggle in a traditional workplace environment to perform to the best of their ability. Understanding neurodiversity can help employers make better decisions, enable them to support their workers 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 not be diagnosed. When employers fail to actively support neurodiverse workers, they could miss out on the benefits of thought diversity, increased employee productivity, and 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.

Reasonable adjustments

A number of 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 any employment law matters further, particularly in regard to discrimination, please feel free to email me or contact the Employment department on 020 8858 6971.