Greater societal awareness of neurodiversity has resulted in employers increasingly recognising it as a valuable strand of diversity, equity and inclusion (DEI). The City and Guilds Neurodiversity Index Report 2024 found that, in 2023, 44% of businesses had neuroinclusion strategies, up from 34% in 2022 (https://cityandguildsfoundation.org/ what-we-offer/campaigning/neurodiversityindex/#report). Many employers are looking to create neuroinclusive workplaces, which allow them to tackle the ongoing skills shortages and reap the rewards of having a truly diverse workforce.
Against this backdrop, the CIPD (Chartered Institute of Personnel and Development) has published a guide on neuroinclusion at work, which contains helpful advice for employers in creating a neuroinclusive workforce (www.cipd.org/uk/knowledge/ guides/neuroinclusion-work)
What is neurodiversity?
The term "neurodiversity" is a relatively new term and is thought to have been coined in around 1997. Neurodiversity is an umbrella term which refers to the fact that people's brains work differently and all minds are unique. The CIPD guide defines neurodiversity as "the natural variation in human brain functioning".
Neurodiversity can include a range of neurological differences, including autism, dyspraxia, dyslexia and attention deficit hyperactivity disorder (ADHD or ADD). The CIPD estimates that one in five people identify as neurodivergent, although some may not have an official diagnosis.
Neurodiversity at work
A lack of awareness and understanding of neurodiversity has meant that many workplace environments, processes, policies and management practices are not designed with thought as to how they may affect different people. Workplaces have historically been geared towards people with the most common preferences and traits; usually those who could be considered "neurotypical".
This can create challenges and barriers for neurodivergent employees, both when
applying for roles and during employment. For example, some neurodiverse employees may find last-minute changes stressful or verbal instructions difficult to follow. The workplace environment in the wake of the COVID-19 pandemic has created additional challenges; for example, some neurodivergent employees may prefer routine and so hotdesking systems, which have increased in popularity, can be problematic.
The growing awareness of neurodiversity has led to an increase in the number of diagnoses; for example, autism diagnoses between 1998 and 2018 increased by 787% (https://acamh.onlinelibrary.wiley. com/doi/10.1111/jcpp.13505). An increase in diagnoses and awareness has practical implications for employers. As many people are now being diagnosed from a younger age, employers will increasingly be expected to more proactively accommodate and support employees who received adjustments throughout school and university. On the other hand, employers will also need to provide support and adjustments for employees that are undergoing testing or receive a diagnosis later in life.
This has also resulted in an increase in litigation in this area. Employment tribunal judgments in England, Wales and Scotland that were filed under the disability discrimination jurisdiction code and referenced "dyslexia" increased from zero judgments in 2015 to 111 in 2023 (www. gov.uk/employment-tribunal-decisions). Other conditions have followed a similar trend.
Creating a neurodivergent workplace
As every brain is different, every workplace will inevitably be neurodiverse. However, a neuroinclusive workplace will actively promote and include all types of thinking. Case law highlights key areas where all employers will need to be particularly mindful of neurodivergence.
Reasonable adjustments. If a disabled person is placed at a substantial disadvantage by a provision, criterion or practice imposed by their employer or by a physical feature of the employer's premises, the employer hasa duty to take reasonable steps to avoid that disadvantage (see box "Disability").
Adjustments should be considered both during recruitment and employment. The adjustments that are required will be driven by each individual but adjustments may be needed to the work environment, the location where work is carried out, working arrangements or the equipment needed.
There are a wide range of reasonable adjustments that could be considered reasonable for a neurodivergent employee. For example, in Bulloss v Shelter, an employment tribunal found that potential reasonable adjustments could include specialist software, proofreading support, written confirmation of verbal instructions and the provision of a quiet place (ET/1806293/2017; ET/1805354/208). Other adjustments could include regular short breaks, providing regular and clear feedback, additional structure such as a timetable, or advance warning of changes.
For a reasonable adjustment claim to be successful, an employer must know, or ought to know, of both the disability and the substantial disadvantage. In Glasson v The Insolvency Service, an employee with a stammer applied for an internal promotion ([2024] EAT 5). Ahead of an oral interview, he notified his employer that he would need more time to complete his answers, which was permitted. Another applicant ultimately scored higher and was appointed to the role. Mr Glasson sought to bring claims based on the fact that he went into "restrictive mode", giving shorter answers to avoid stammering. The employer had no knowledge of this disadvantage and so the Employment Appeal Tribunal (EAT) concluded that it was not required to implement further reasonable adjustments.
Recruitment. Recruitment has recently been a focus for promoting DEI more generally for many employers, often with a focus on gender diversity. Employers are also beginning to recognise the benefits of attracting and retaining neurodiverse employees. Neurodiverse people can have skills that other members of the population do not have. Some advantages of these conditions can include strong organisational, pattern recognition and memory skills, as well as being creative problem solvers. This can make individuals well suited for particular roles and tasks.
Traditional recruitment techniques, such as paper application forms and inperson interviews, may pose a barrier for neurodivergent applicants or employees. For example, aspects such as eye contact or body language have historically been important but this can disadvantage neurodivergent applicants. In Government Legal Service v Brooke, an employer required a job applicant with Asperger syndrome (a controversial term which is no longer used as a diagnostic term for autism) to sit a multiple-choice test (UKEAT/0302/16/RN; www.practicallaw. com/w-008-3695). The EAT held that this was an unjustified practice amounting to indirect discrimination and a breach of the duty to make reasonable adjustments.
In AECOM v Mallon, the EAT held that an employer had failed to make a reasonable adjustment where a dyspraxic job applicant asked to make an oral job application rather than filling in a form (UKEAT/0175/20/LA; www.practicallaw.com/w-040-8029). The employer insisted on the employee setting out his difficulties in writing by email. The EAT held that the employer should have spoken to the applicant on the phone rather than enquiring about his difficulties by email.
These cases highlight that employers should be proactive in considering reasonable adjustments throughout the recruitment process.
Conduct. Cases where employees have committed misconduct linked to their neurodivergence can be particularly difficult. In McQueen v General Optical Council, an employee with autism, dyslexia and hearing loss was disciplined for rude and aggressive behaviour ([2023] EAT 36; www.practicallaw. com/w-039-2365). The EAT upheld an employment tribunal's decision that this was down to his short temper or personality rather than his disabilities. It therefore dismissed the principal claim of discrimination arising from disability. Other cases have emphasised that only a loose connection is needed between the "something" leading to the unfavourable treatment and the disability, and this will be fact-sensitive and sometimes finely balanced.
In Borg-Neal v Lloyds Banking Group, a manager was dismissed for using the "n word" in a race awareness training session (ET/2202667/2022). An employment tribunal found that this was disability discrimination because the manager's dyslexia was a strong factor in how he expressed himself during the session.
In Morgan v Buckinghamshire Council, Ms Morgan, a social worker with autism and dyslexia, was dismissed for inappropriately giving gifts to children ([2022] EAT 160). She refused an occupational health assessment, which was key to the employer successfully arguing that any unfavourable treatment was objectively justified. However, a manager had criticised Ms Morgan's "choice" to mask her autism, describing this as deliberately withholding her condition and putting children at risk, and the EAT held that this was harassment.
These cases highlight the importance of appreciating the effect that a condition has on an individual and how that may have played a part in the misconduct.
Top tips for employers
The CIPD guide includes a number of different recommendations for how employers can support neurodivergent employees. Employers should consider neurodiversity throughout the entire employee lifecycle. Drawing on the CIPD guide, some practical suggestions for employers are set out below. Plan ahead. The CIPD guide recommends that employers undertake intentional role planning and have clear and concise job descriptions, which distinguish between core.
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