In the past few years, we have seen increasing numbers of tribunal claims being brought by neurodivergent employees. At the same time, a recent poll of line managers run by Acas highlights that the most significant barrier to employers making reasonable adjustments was employees not disclosing their need for adjustments to be made. Other significant barriers were lack of organisational support and line managers finding it difficult to have the conversation with employees.
Why is it important?
According to the Department for Work and Pensions just 31% of autistic individuals are in employment, compared to 54.7% of disabled people overall. Taking this a step further, the latest figures (Q3 2024) show that the disability inactivity rate was 41.7% for disabled people compared to 14.7% for non-disabled people. Taking these two statistics together, the picture for neurodivergent people, many of whom do not consider themselves to be disabled even if they would legally qualify as such, is depressing.
While the apparent rise in tribunal claims may indicate more neurodivergent workers in the workplace, it also suggests that employers are not yet comfortable in how to support this part of the workforce, and that there may be preconceptions about neurodivergence and how it impacts capabilities.
Tribunal claim
A recent example of this can be found in the case of Crawford v The Chief Constable of Cumbria Constabulary. This employment tribunal claim was brought by a police officer when her application to become an authorised firearms officer was refused because she has autism spectrum disorder. The police force was aware she was neurodivergent, she had been working as a police officer for approximately three years at the time of her application (having previously been a special police officer while studying policing at university) and reports from superior officers were "overwhelmingly positive". She passed all necessary exams, observation and judgment testing and a live fire shooting session, but the Deputy Chief Constable prevented her attendance at a firearms course.
Evidence before an employment tribunal highlighted that the Deputy Chief Constable had relied extensively on an out-of-date personal statement (dating from when the claimant had been a student and written only shortly after her diagnosis) on coming to his decision. He also did not consider her application form for becoming a firearms officer, nor did he meet with her prior to making that decision. Claims of direct and indirect disability discrimination were successful, as were claims for unfavourable treatment arising from disability, a failure to make reasonable adjustments and one claim of disability related harassment. In December 2024, an award of £21,000 in respect of injury to feelings was recorded in an employment tribunal remedy judgment, as having been agreed between the parties.
This was a fairly clear-cut case - the Deputy Chief Constable prevented the claimant from progressing her career because of her autism. However, it is concerns about this sort of reaction to neurodivergence that will prevent employees from informing their employers of their condition, which then inhibits employers from being able to consider reasonable adjustments.
What can employers do?
Masking is a term that is commonly used in the context of neurodivergence. The National Autistic Society describes this as being a strategy used by some autistic people, consciously or unconsciously, to appear non-autistic in order to blend in and be accepted by society. Even highly trained specialists can find diagnosing some conditions difficult. It is little wonder, then, that employers may not recognise when an employee may be neurodivergent.
Bearing this in mind, one of the most important things an employer can do to address barriers to employment for neurodivergent employees is to create an inclusive working environment where they feel comfortable talking about their condition. Doing so paves the way for discussions on reasonable adjustments and significantly reduces the risk of employment tribunals.
Creating such an environment will not happen overnight, but resources are being put in place to support employers. Acas has recently published some guidance for employers on achieving this. The Department for Work and Pensions has also set up a new expert panel of academics, to advise the government on improving job prospects for neurodivergent people with the aim being for neuroinclusive practices in workplaces to just become part of "business as usual".
Our next Essential Employment Law Webinar also looks at neurodivergence in the workplace and the unique challenges it brings, including why some of the more standard tools for dealing with disabled workers, such as occupational health referrals, may not be as effective. We will be joined by Matthew Day of Autism Initiatives who has over 30 years' experience in working with autistic adults. You can register for the webinar, which takes place on 6 March, here.
