With employment tribunals seeing record levels of cases involving autism and ADHD, it’s important for employers to understand their legal obligations.
The number of ADHD and autism diagnoses in the UK is rocketing to the extent that the BBC says ADHD has ‘rewired the workplace’[1]. If you’re an employer, this has serious ramifications.
On one hand, a better understanding of conditions such as autism, ADHD, dyslexia, and dyspraxia helps employees perform at their best. On the other, the growing incidence and awareness of these conditions is fuelling more complex and AI-generated grievances and tribunal claims.
However, employers who develop their understanding of their legal obligations towards neurodiverse employees can reduce their risk of facing these complex claims and grievances, and enhance their ability to defend these claims effectively in Employment Tribunals.
The challenge for employers
Between 1998 and 2018, autism diagnoses rose almost eightfold in the UK, while the number of adults diagnosed with ADHD was almost 20 times higher in 2018 than in 2000. Since 2020, diagnosis rates have been accelerating even faster. And that’s just the figures for people who have received a diagnosis; there are many, many more who are waiting for an assessment or haven’t sought one.
This trend matters to employers because neurodivergent conditions such as autism and ADHD often (though not always) count as disabilities under the Equality Act 2010.
An employee whose condition meets the legal definition of a disability has automatic protection against discrimination. This includes the right to reasonable adjustments. These rights and protections are triggered as soon as an employer knows, or should reasonably know, that the employee is disabled.
Whether an employer is aware of, or ought reasonably to be aware of, an employee’s disability, can be a complex problem in itself. As an employer, if you are unsure whether an employee could be classed as disabled, it’s important to obtain legal advice and/or an occupational health report as soon as possible, to understand any potential legal obligations.
What you need to know
The rise in neurodiversity diagnoses and awareness means employers are increasingly likely to face claims of discrimination – such as a failure to make reasonable adjustments and unfair dismissal – from employees with autism, ADHD, and other conditions. Even where these grievances or claims are resolved, settled, or ultimately unsuccessful at tribunal, they can still consume significant time and resources.
As an employer, you therefore need to understand your obligations towards employees with neurodivergent conditions. It’s also useful to know what you are not obliged to do.
It won’t come as a surprise to know that the issues in play here are highly nuanced. The key point is that each employee and each claim or dispute is different. Not every neurodivergent behaviour amounts to a disability, and, perhaps more importantly, not everything AI tells you or your employees about employment law, neurodiversity, or potential tribunal awards, is accurate or relevant.
What constitutes a reasonable adjustment and what doesn’t
The duty to make reasonable adjustments arises out of Section 20 of the Equality Act 2010. It requires an employer to consider whether a provision, criterion, or practice (PCP) puts a disabled person at a disadvantage. If a PCP does disadvantage a disabled employee, the employer should take reasonable steps to avoid the disadvantage. This is a technical overview of the obligation, but some practical scenarios include:
- If an employee has anxiety and struggles in customer-facing roles, an employer could agree to reallocate their duties and allow them to work in a non-customer facing role.
- If an employee has sensory issues or finds working in an open plan office overwhelming, the employer could allow them to work in a quiet area.
One of the key points to note with reasonable adjustments is that they are not a black and white issue. There’s no set statutory definition of reasonableness and the test for it is subjective. However, that does not mean that what’s reasonable comes down to personal opinion:
- An employer can say no to adjustments requested by an employee. The obligation to agree to reasonable adjustments does not extend to any and every adjustment requested by an employee. Equally, the fact that you offer an adjustment to one employee does not oblige you legally to provide the same adjustment to other employees.
- When an Employment Tribunal is determining whether an employer failed to make reasonable adjustments, consideration will be given to its size and administrative resources. For example, an adjustment may be considered reasonable for a business with over 500 employees but not reasonable for a small, family-owned business with 10 employees.
Practical protection and prevention
If a grievance does turn into a formal claim, you will have to justify rejecting a requested adjustment. You must be able to show that you have listened, discussed, and carefully considered the request. Where appropriate, employers can also offer viable alternatives to the adjustments requested.
An even more effective approach is to prevent claims arising in the first place – for example, through training for yourself, your managers, and other staff.
Some successful cases at tribunal have focused on the treatment of people at work, and not just on the question of reasonable adjustments, including aspects of managers’ non-verbal behaviour, such as sighing or other signs of impatience. Neurodiversity training can help you avoid unconscious discrimination – as well as providing benefits in terms of performance management, employee relations and access to talent.
The convergence with AI
As in so many areas of law, the rising number of claims relating to neurodivergence and discrimination is being fuelled by ChatGPT, Claude and other AI tools. They tend to give users the answers they are looking for (which are not necessarily the correct answers), creating unrealistic expectations about what employees can claim for and the payouts available for discrimination or failure to make reasonable adjustments.
For employers, the convergence of two trends – the use of AI in employment claims and the rising number of neurodivergence claims – may seem alarming. But be reassured. Firstly, you don’t have to say yes to every reasonable adjustment requested. And secondly, there is plenty of practical support available to help you navigate these issues, including through our fixed fee Prism service for employers.
