Employers Legal Duties for Employees with a Neurodiverse Conditions

Scott: So could you maybe explain in general what the duties are when it comes to applicants or employees with neurodiverse conditions and what this whole reasonable adjustment element is about?

Seamus: Well, the protection essentially is enshrined in the Disability Discrimination Act of 1995. I know that in England now they have the Equality Act, but we still rely upon and use the Disability Discrimination Act and many of the amendments to that.

Essentially, we always go back to that meaning of disability that's set out within the act, and it's essentially a person has a disability, for the purposes of the Act, if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out their normal day-to-day activities.

And it goes further than that. It's set out in Article 4. It deals with discrimination specifically against applicants and employees, and Article 4A for employers, their duty to make reasonable adjustments.

The word that springs is it does oblige employers to make reasonable adjustments for someone with a disability. Not always, but often this will include neurodiverse individuals.

Where I see it, the law affords protection for employees with disabilities, and there essentially two protections. One, employers have an obligation to make reasonable adjustments for a disabled employee, and second of all and importantly, those employees shouldn't be treated unfavourably for a reason arising out of their disability.

And for me, really, that does mean that employers have a duty to ensure that disabled employees can overcome any substantial disadvantages that they may have in doing their jobs or, alternatively, in progressing at work.

And that all sounds very straightforward. I think we should be clear in relation to those disabilities. But as I've mentioned just at the start, it's not always that straightforward because employers often will not have an awareness and it's this aspect of referring to neurodiverse conditions as hidden or that they're hidden disabilities.

And it may be as well that sometimes you have individuals that wouldn't be happy being termed as having a disability. They wouldn't be comfortable with that because they feel that they can function and operate the same as the rest of us.

I suppose what might be helpful for the listeners is to give a flavour and an idea of where these sort of cases come from and give some practical advice in relation to it.

But just before I'd say that, just in relation to what are termed reasonable adjustments, it's really important that employers of neurodiverse individuals take steps to understand the employee's condition as soon as possible, whether it's brought to their attention or whether it comes to their attention maybe through other ways and means.

I think the key aspect, for me, this has to be that the employer needs to get an understanding, and that might be looking at outside training resources. Maybe Texthelp are able to assist in relation to that. I know that there are other agencies available out there as well, but it's getting a real grip and an understanding of the condition and how it impacts on the person. And often, the best way to find that is to speak to the employee generally.

We'd mentioned just at the start that sometimes there's a bit of a fear and a bit of a worry about how you bring these matters up and how it's discussed. There is a degree of sensitivity that has to follow with that, but just in respect to the adjustments themselves, they are reasonable adjustments and it doesn't necessarily require the employer to spend vast amounts of money or to start bringing in really over-expensive software and things like that. Sometimes these reasonable adjustments are small, they're inconsequential, but they can make substantial differences to the individuals that are concerned.

One of the things would be, with neurodiverse employees, maybe someone on the autism spectrum, that change would bring around a lot of anxiety. It's about avoiding changes and having a plan in place for those employees where maybe you're given advance notification or you're communicating openly, maybe putting things in writing and giving explanations of where things are at.

But maybe just to touch on some of the cases, there are maybe three cases that I'll mention in total. The first one is a case of Everitt against Regal Consultancy. This was an ET case in England in 2016 and this related to an employee who worked in Subway and this employee had high-functioning autism. And there was a hygiene test that was undertaken within the workplace and they failed and it subsequently brought disciplinary proceedings that arose. The employer was aware of the employee's condition, and at the disciplinary hearing, the employee asked if they could have a family companion attend, and the purpose was really because the family member understood the employee's condition. They had particular communication issues and it really would have been a help and an advantage if the employee had been with a family member. That was refused and, ultimately, the ET found that it was a failure to make a reasonable adjustment.

It's important there that that adjustment wouldn't cost them any money. It wouldn't have cost anything. It was really just about supporting the employee. So very, very simple things can go a long way.

Another case, trainee solicitor in England, this was as an Employment Appeal Tribunal case from 2017. The title of the case is Government Legal Services against Brooks. A trainee solicitor was applying for a training contract and, as part of that process, had to complete a multiple-choice questionnaire. She was autistic and she made a request for a reasonable adjustment to be made because, specifically, the multiple-choice questionnaire caused difficulties and problems.

She made a disclosure in respect of her condition. However, that wasn't facilitated and, again, it was upheld that that was a failure to make a reasonable adjustment.

A more sort of recent case and sort of more serious implications arising from a failure to make a reasonable adjustment related to City of York v Grosset. This is a well-publicised case. It's a Court of Appeal case from England relating to a teacher who had, again, disclosed the condition and had been dismissed from his employment as a result of providing sort of source materials. I think it was a film that was provided to a class that would have been considered inappropriate because it was a horror film and there was maybe violence in it and things like that.

But the award on that one was . . . the Court of Appeals said that if there was a finding in respect of wrongdoing in terms of the liability, the award would have been at £646,000. What they said was that this was a position whereby if adjustments had have been made, the likelihood was that the dismissal wouldn't have come around as a result of that.

So it's sort of just to highlight the problems that arise, and hopefully later on I'll touch on another case, a local case here in Northern Ireland.

It's important that employers come to the table, I think, with neurodiverse employees with an open mind and that they are taking their steps in terms of their obligations under the legislation to make those reasonable adjustments. And again, just underlining that point, it doesn't mean that it's going to be a cost or any kind of significant cost. It's coming back to that aspect of looking at what is reasonable. But it's just to give you a flavour of that.