Neurodiversity and the Law
02 Feb 2025
Published in: Member News
What does having neurodivergent workers in the context of having a disability and the law.
Understanding neurodiversity in the workplace is essential, and HMB Training Services is here to guide you through the legal aspects.
When a worker is diagnosed with a neurodivergent condition such as Autism, ADHD or Dyslexia, not all neurodivergent workers will consider themselves to be disabled.
Did you know workers have the right to identify (or not identify) with the term as they see fit? Under the Equality Act 2010, neurodivergent workers are, however, likely to meet the legal definition of disability.
This provides them with important rights to reasonable adjustments, and protections against discrimination, harassment, and victimisation. There are also additional duties on public sector employers. The Government’s statutory guidance to the Equality Act states that:
‘A disability can arise from a wide range of impairments which can be … developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia.’
Workers are also protected against ‘discrimination by association.’ This may arise when a worker is treated less favourably because they have a dependent with a neurodivergent condition (e.g. parents or carers). Disability has a specific legal definition, and claims of discrimination and failure to make reasonable adjustments will be assessed against the criteria that definition sets out.
Workers should nevertheless be cautious about making statements to the effect of ‘I don’t consider myself to be disabled,’ as such remarks may be quoted back at them by a hostile employer.
For some claims to succeed, it is necessary to demonstrate that the employer knew, or should have known, about a person’s disability (depending on the category of discrimination). When an employer disputes the fact that a person has a disability under the Equality Act, the burden of proof falls on the claimant.
For invisible disabilities, such as neurodivergent conditions, this is likely to involve the providing or commissioning of expert evidence.
Legislation
The key legislation that relates to neurodiversity in the workplace is the Equality Act 2010. This Act consolidated and expanded previous employment equality legislation (including the Disability Discrimination Act 1995).
Neurodivergent workers are likely to be found to be disabled within the meaning of the Equality Act. Disability is a protected characteristic.
This provides them with legal protection against discrimination, harassment and victimisation that relates to their condition. Employers also have a duty to make ‘reasonable adjustments’.
Are you up to date with your policies if you have neurodivergent employees?
Comments
Post A Comment
You must be logged in to post a comment. Please click here to login.
Our Patrons
