Neurodiverse Employees - Data Protection Implications

Posted in : Seamus Says - Employment Law Discussion on 2 October 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Data protection; Neurodiverse employees

Scott: We have complaints from colleagues of a particular staff member whom we are aware has Asperger's Syndrome that's difficult to work with and not much of a team player. How do we handle this while not disclosing their neurodiversity?

Which I'm assuming here that they've said they don't want to disclose. Are there competing rights here, because health is a special category or sensitive data under the Data Protection Act?"

It's kind of hard. It throws up that difficult thing for employers where the employee is saying, "I don't want you to tell anybody", and the employees are going, "This chap is really hard. He's not a team player, doesn't join in, doesn't help us", type of stuff, but they don't know that he's got a disability. How does an employer deal with that?

Seamus: Yeah, it is difficult. I've come across cases in the past where there are those issues that have arisen. I think that, absolutely, the neurodiverse employee has a right of privacy in respect of their condition, and if they're not content or not happy for it to be discussed on a wider basis, maybe other than management, I think that that does need to be respected.

But I think then it puts the obligation on the employer. Again, it's a point for the employer to assess the situation and to work with both employees, if you have two employees that are maybe butting heads, or it's maybe bringing it to the attention of neurodiverse employee, discussing it with them, and seeing if there's a discussion to be had around how that can be improved.

Again, it's the fear factor that we've talked about of approaching and having those open discussions with neurodiverse employees in case that you're offending or in case that you are stepping into the realms of harassment or discrimination.

But from an employer's perspective, I think it's about taking a step back and it's about reviewing the processes that are in place and seeing if there are steps that can be made to improve those aspects of teamwork and things like that. What are the stumbling blocks that are in place?

Maybe as a result of the condition that's just not something that's going to be possible, and maybe that just needs to be faced up with and dealt with, and that other employees are notified that that's not going to happen.

But typical things that you would look at would be to make sure that employers are giving clear instructions to employees, that they are not overloading them with work, and that they're providing environments that are free from distractions and allowing staff to channel themselves into the tasks that they excel at rather than demanding good performance for tasks that they're less suited to.

So I think there's a responsibility on the employer to deal with the issues that arise. I'm not saying that you're going to get a perfect solution in relation to it, but I think it's about being open and having those conversations and making sure that there's good communication.

Certainly, I'm not advocating at any point that any employer would go to an employee and cause offence. It certainly is a balance and there's sensitivity around it, as I said.

But if you end up at a tribunal, the responsibility under the legislation is for the employer to provide those reasonable adjustments, and that has to come via discussion with the employee, or alternatively maybe looking for advice outside of that, whether it's medical advice or maybe advice from another third party, such as the organisations that we've talked about. But there has to be a key to unlocking that, and I do think that that does fall to the responsibility of the employer, bearing in mind again that we are talking about reasonable adjustments.

Scott: Okay. Louise, finally, I suppose, dealing with that, the other side of that coin is that there's maybe a responsibility on the individual. Because if nobody else in the organisation knows that you have a condition, then don't be surprised if they don't treat you the way that you might hope. Do you have any experience here?

You deal with individuals . . . and I know that Read&Write packets that you have, you've used that in the police . . . was it South Yorkshire or something that you used before? And everybody has it and therefore nobody is pointing it out, "Oh, you've got dyslexia", or whatever. Everybody uses this package that helps the reports become better.

Well, what about those individuals as well who maybe it's getting them over the edge to say, "Yeah, I've got this thing and I'm not afraid to show it"? Do you ever deal with those things in Texthelp?

Louise: Yeah, definitely. As Seamus was pointing out, obviously the organisation does have to sort of raise that awareness, and it is very much on them to create that culture of openness and that you can come for support.

I think just when you touched on South Yorkshire police, it was something they did incredibly well. They were very much focussed on diversity and inclusion across the board, so all your sort of main topics that fall under that, disability, LGBT, race, gender. They were doing a lot of work on each of those, so they have kind of the base and the framework in place.

And one story that South Yorkshire shared with us was that there was one particular individual who had been in the police force for, I think, about 20 years. So they had come up through the ranks. They had started out as a PC, out on foot, and over the years had progressed their career to a very high profile senior role.

All of a sudden, their job shifted from doing sort of quick reports on cases and putting notes in sort of shorthand and having that sort of data to, all of a sudden, they were having to write reports, they were having to speak to media, they were having to speak to various other stakeholders within the police.

They started to feel this sort of sense of pressure and, as you had talked about before, anxiety. All of a sudden, writing this report became such a huge thing. And they had spoken to somebody within the organisation who was aware that South Yorkshire police provided disability support.

So, again, they went and got tested. I think they were in their late 40s, early 50s, and they were diagnosed with dyslexia. And all of a sudden, it was that light bulb moment where this all makes sense now.

He had coped for so long, doing what he had to do to get through his job, but just with that change in his job and the pressures that perhaps came with it, his dyslexia was heightened.

So, within days, he was able to get the support he needed and he was up and running. South Yorkshire Police had already rolled out our Read&Write offer to all staff, because they wanted it to be a case of, "Nobody should have to come forward if the support is already available for them". So they were able to get him his training. He had all the resources available there.

So, again, as much as we talk about these certain conditions, many people aren't even aware they have the condition. As an organisation, you've done all that work, you've promoted support that's available, but an individual might not even know it's something they have.

Just something that I've actually been watching in the past couple of weeks . . . I don't know if your audience have caught it, but definitely go back and have a look at a show called "The Write Offs", which was on Channel 4.

It really gives you an insight into how somebody with dyslexia sort of goes through day-to-day life, certain things that we take for granted. If somebody gives you a shopping list, you can go into the supermarket and pick everything out, but for some people, that's a real struggle.

And there was one story actually in particular in this TV show where there was an individual, he was an English and drama teacher, and he had a stroke and he basically said that all the words just fell out of his head. So it was taking him so much more time to try and relearn these words.

Again, although somebody may not have had a condition from birth, they may work for you for 10 or 15 years, and all of a sudden, something has changed for them and they're not sure how best to address that or how best to come forward.

So, again, it's really gone back to keeping the conversation channels open. Having disability champions is a big, big thing that we're seeing more and more. There's maybe one or two people that it's not obvious if you're going to speak to them, because I think even . . . Some people say, "Oh, that's an HR function". People get a bit scared talking to HR sometimes. It does seem a bit overwhelming or they may be scared that it will come at the bigger issue.

So, yeah, there are loads of other stories we have like that as well, but that was just one in particular with South Yorkshire that we had worked with.


This article is correct at 02/10/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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