A recent Employment Tribunal (ET) decision has provided key learnings for employers who have neurodiverse individuals in their workplace. We explore the decision and the key takeaways for employers.
Background
The Equality Act 2010 (the Act) provides protection for employees from being discriminated against or harassed due to having a protected characteristic, such as a disability. Under the Act, a disability is any physical or mental impairment that has both a “substantial” and “long-term” negative effect on a person’s ability to perform normal day-to-day activities.
“Neurodiversity” is an umbrella term covering a number of conditions which causes an individual to think and process information in a different way to neurotypical individuals. This includes autism, ADHD and dyspraxia.
Neurodiverse individuals will often meet the definition of “disabled” for the purposes of the Act and, as such, are afforded protections against discrimination and harassment, including a duty on their employers to make reasonable adjustments to remove barriers that they may face in the workplace.
James v. The Venture (Wrexham) Limited
Mr James was diagnosed with Autism Spectrum Conditionin 2019. He started work with The Venture (Wrexham) Limited (Venture), a children’s centre, as a play worker in 2021, following a period of volunteer work there.
In October 2023, Mr James wrote to his employer setting out some of the challenges he faced as part of his condition. He noted that, while some adjustments had been made previously, there had been difficulties caused by a lack of reasonable adjustments in respect of some of the challenges outlined. These included continuing to play background music at an event that Venture knew Mr James would be attending, when he had set out previously that he struggled to concentrate on his work when subjected to background noise.
Venture arranged subsequent meetings with Mr James to discuss how they could implement the changes he had requested. At one meeting in November 2023, the Chief Officer of Venture, Mr King, commented that Mr James performed strongly in his role and therefore he needed to find ways to accommodate him “even though it’s a pain”. He then went on to ask Mr James why he cannot be “ordinary and perfect like the rest of us” and commented “having always been something of a weirdo myself, I have some sympathy”. At a subsequent meeting in February 2024, Mr King questioned Mr James’s work abilities due to his condition and compared it to someone being impacted by a “good booze-up”.
Venture suspended Mr James in June 2024 after failing to report an incident at work. He brought numerous claims against Venture, including for discrimination arising from disability, harassment related to disability and failure to make reasonable adjustments.
ET decision
The ET upheld Mr James’s claims of discrimination arising from disability and harassment related to disability with respect to the comments made by Mr King. Whilst it accepted Mr King’s explanation that the comments were made with the intention of trying to lighten the discussion, it found that Mr James had perceived the comments as violating his dignity and, under the circumstances, it had been reasonable for him to do so.
The ET also partially found in Mr James’s favour with respect to the claim for failure to make reasonable adjustments. In particular, Venture had held a meeting with Mr James in a room with a bright light, despite being aware that this caused difficulties for him.
The ET awarded Mr James total compensation of £17,154.86, of which £15,000 was for injury to feelings.
Key takeaways for employers
The ET decision serves as a timely reminder to employers of the importance of creating a workplace that is inclusive for neurodivergent employees. It highlights the importance of ensuring a culture of respectful communication at all levels, particularly at the top where the tone should be set. In this case, the most senior individual in the organisation made an inappropriate comparison (of a mental health condition and working under the influence of alcohol) and used demeaning language. This serves as an important reminder that seemingly casual comments or attempts at humour can constitute discrimination when they relate to a mental health condition or other disability. Whilst the ET accepted that the comments made which formed the key basis for the claim were not made with discriminatory intent, they nevertheless had the effect of violating a disabled employee’s dignity and, as a result, constituted discrimination.
Employers striving to create an inclusive environment, particularly for neurodiverse employees, may want to consider:
- providing training for line managers on the topic of supporting neurodiverse individuals;
- setting up regular one-to-ones to check in with neurodiverse employees and considering any adjustments that can be made;
- taking a proactive approach to suggesting reasonable adjustments for neurodiverse employees and facilitating open dialogue where employees can access the individual support they need;
- providing access to mental health resources like Employee Assistance Programmes; and
- fostering a culture of understanding and empathy which recognises that we are all different, including that different individuals with the same condition have different needs and that there is no one-size-fits-all approach.
With an estimated one in seven people in the UK being neurodivergent, a diverse employee population better reflects customers and communities, bringing valuable lived experience. Organisations that embrace neurodiversity not only fulfil their legal obligations but also gain competitive advantages through diverse thinking and problem-solving approaches.
In addition, where employers create an inclusive culture where difference is talked about, celebrated and role-modelled at executive and all levels, it is more likely that neurodivergent employees will feel safe to ask for what would support them in their role.
For further guidance on supporting neurodiverse employees, please view our recent article on this topic.
