In this episode, David Hossack and Alan Delaney discuss a new independent expert panel report on neurodiversity in the workplace and what its recommendations mean for employers. They explore how organisations can create more neuroinclusive workplaces, support neurodivergent employees, implement effective reasonable adjustments and reduce the risk of employment tribunal claims.
The discussion covers practical steps employers can take to improve workplace inclusion for people with ADHD, autism, dyslexia, dyspraxia and other neurodivergent conditions, including accessible recruitment practices, workplace design, manager training and a needs-based approach to support. David and Alan also examine the employment law implications of neurodiversity, highlighting how proactive adjustments and inclusive workplace cultures can improve employee wellbeing, performance and retention while helping employers manage legal risk.
David: Hello and welcome to the Morton Fraser MacRoberts Employment Podcast. I'm David Hossack, and I'm really pleased to be joined today by Alan Delaney.
Alan: Hi, David.
David: And today we're going be talking about the topic of neurodiversity and in particular about a relatively new expert panel report. But before we go into that, Alan, there will be people that say, "Neurodiversity, I don't understand it. What does it actually mean?" So let's just take a step back and think about that.
Alan: So starting with the basics and again, this is I'm sure very familiar to many listeners if not all listeners. But it might help set the scene by saying that neurodiversity recognises essentially that our brains all work in different ways. And of course, that means we've all got different strengths and things that we find more challenging. When we use the term neurodivergent, well, that's commonly used to describe someone whose brain works differently to what is considered more typical, and sometimes we hear the word neurotypical, for example. Albeit this is clearly something we could talk about all afternoon as to what's typical and not. But neurodivergent conditions most commonly will include things like ADHD, autism, dyslexia, dyspraxia, dyscalculia, And I'm sure that all listeners will have some experience with one or more of these conditions. It could be lived experience, it could be relatives and loved ones or indeed people that are managed in the workplace, which of course is the focus for us. And maybe just the last thing to say which you're well aware of, David, is that it's actually quite common for someone to have more than one of these conditions sometimes called co-occurring conditions in that context.
David: So with that context, let's get into the guts of today's topic, and that's really a new expert panel report for the Government on neurodiversity and the workplace, and that's been published in early October this year. So what's the background to this report, Alan?
Alan: Thanks, David. So the essential background here is that in January last year, so January twenty twenty-five the Government specifically the DWP, launched an independent expert panel, to explore opportunities to improve the inclusion of neurodivergent people at work. This panel was chaired by a leading academic Professor Amanda Kirby.
This will probably become known as the Kirby report I suspect. She is a professor at the University of South Wales and a real expert on neurodiversity in the workplace. And her, along with a number of other leading academics produced this report. What I think is of most interest to us as employment lawyers is that it was specifically looking to make findings, not just to inform Government on policy matters, because that obviously takes some time to come through, some years to come through, but specifically to make recommendations that employers would find useful dealing with neuro inclusion in the workplace. I should say if you've looked at it, the report is very lengthy, but it does have a very useful executive summary at the start, and that includes not just recommendations for Government, but specific recommendations for employers too with two specific chapters on what employers can do now. So very interesting stuff.
David: And it is steeped in practicalities, I think, Alan.
Alan: Yes, absolutely. And I think that's what employers really need. I think when we speak to clients, we find that this can be an area where the feedback suggests that line managers don't always feel as equipped as they could be, as they should be to deal with neurodivergent conditions. Sometimes there is a concern about getting the terminology right. And I think guidance like this, particularly practical guidance, is very useful.
David: And tempting though it is to leap immediately into looking at recommendations, the report does set the scene for those recommendations by looking at some of the difficulties that neurodivergent employees face in the labour market. What does it say about that?
Alan: That's right. The report notes by way of background that neurodivergent individuals bring very valuable strengths to the workplace, but yet often they do face a lack of inclusive practices and equitable opportunities. The report found that they are underrepresented in the workplace, and as a group, they face a higher level of underemployment. And also they face barriers that many of us don't posed by, for example, the application of conventional recruitment methods. So it's harder for them to find work to begin with. And within the workplace they can then experience greater challenges progressing in work compared to those who can navigate what one might describe as standard employment practices. Let's be clear, not all neurodivergent workers face these barriers and challenges or if they do, they face them in a different way. But for a number of individuals with neurodivergent conditions, particularly those that impact their functioning at work that is something that needs to be addressed by employers.
And it can affect not just things like progression, but things like performance and wellbeing, of course as well.
David: So looking at the recommendations, I think there are nine specific recommendations in total, Alan, and these are really worth looking at. So talk me through these.
Alan: Yeah, they definitely are. There are nine specific recommendations made in total to employers. They are absolutely well worth reading. I went through them yesterday. It didn't take me too long. And they are all aimed at embedding essentially a neuroinclusive culture and working environment. So to do so the report looks at all aspects of work life. For example the report includes recommendations and advice on what's sometimes described as the built environment for a neuroinclusive workplace. In other words, how can the existing office fit out or if you're moving to a new office a new office fit out, particularly if you're thinking about open plan, support neurodivergent staff.
Again, there's a whole annex devoted simply to that. Another recommendation looks specifically at recruitment practices. We spoke earlier about the barriers faced in the labour market as a whole. So are your recruitment practices neurodivergent friendly? Are there entry barriers that need to be removed? And again, this might not just be at the employer's end. It could be that they contract for recruitment services and they need to think about their service providers. If someone delivers recruitment services for you is there anything done there that could be a barrier to neurodivergent candidates or put them at a disadvantage? Can an employer turn that, in fact, on its head, and can they say "We want to demonstrate and showcase what our accessible recruitment journey actually looks like. Here we've got job descriptions and selection methods that are accessible and neuroinclusive," positively highlighting, for example, the availability of assistive technology. Within employment itself it was recommended that employers, as part of their culture, should build what's described by the report as psychologically safe cultures where staff feel open to be themselves without fear of embarrassment or negative consequences. And I think this is a great point, actually, wherever possible involving neurodivergent staff to co-design, whether it be policies, practices, improvements to the benefit of everyone.
David: You can't really take any issues with this. It's lots of really good recommendations. But what about specific support for individuals, which I think as you and I know, is often where employers get things wrong?
Alan: Absolutely, and indeed that's often when, where we're involved as employment lawyers providing advice on individual adjustments. Now, before we get into the issue of individual adjustments, one point I thought worth mentioning was a specific recommendation that said basically, if employers give advance consideration to the type of common challenges that might be faced, not by all, but by some neurodiverse employees, and for example, we know that neurodivergent employees may have difficulties with a number of things.
These might include things like communication, planning, movement, sensory processing, mood, regulation and fatigue. If these things are thought about in advance and planned for, then workplaces can become neuro-inclusive by design. I really like that formulation, actually. It's a bit like in the GDPR land, we talk about embedding privacy by design. This is talking about embedding neuroinclusion by design, and that's likely to support the needs of many divergent employees. The idea being, I think, here, that if you can get lots of it right to begin with, then in practice you should minimise the number of individuals that are facing disadvantages and having to come to you and ask for reasonable adjustments.
David: And I like the way that you slipped in GDPR land there, Alan. Let's not go into that in any great depth. Can you think of an example that comes up in Employment Tribunal cases?
Alan: Working spaces, and again, we've touched upon this briefly. There's a number of Tribunal cases that have looked at a failure to make reasonable adjustments because neurodivergent employees are faced with just the standard working environment whether it's bright lights overhead, working open plan with a crowded walkway behind them, finding it difficult to concentrate and do their work. And again if one's looking at neuro inclusion by design whether you're looking at your existing footprint or fortunately if you're moving to a new office and you can start from the beginning, you can give great consideration to what the layout should be providing options for collabouration but for quiet space as well, giving consideration to noise and lights, where are the traffic areas in terms of staff passing by. And it's more likely as a whole to be a working environment that is unlikely to place neurodiverse staff at a disadvantage . And again, the idea there is coming back to this theme of getting it right to begin with before problems arise that then need to be addressed.
David: So I suppose what you're describing there is a system design of a neuroinclusive environment, and that's great. But of course, further individual adjustments might be needed too.
Alan: Absolutely. We spoke there about the proactive element, and I think that's great and makes a huge amount of sense. But absolutely individual adjustments are always going to be required because everyone's needs are going to be different. And again, there were a number of points in the report that came through quite strongly for me. One clear theme that emerges very strongly from the report, a lot of emphasis is placed on this, it's right at the very start of the executive summary, is that employers need to take a needs-based approach to support neurodivergent workers by way of reasonable adjustments. And that's an approach that aims to remove barriers rather than focusing, which I think is a concern of the report, too much on the issue of putting labels on conditions or requesting or let alone insisting upon a diagnosis. The report is somewhat critical, is concerned that until now there has been a bit too much focus on what is the name of the condition and has it been formally diagnosed versus self-diagnosed? And of course, we know that the waiting lists for the diagnosis of neurodivergent conditions is very long running into the years.
So certainly it would be very risky to insist upon someone demonstrating that they have a formal diagnosis. That much we know. But the the risk really identified by the report is that if line managers are spending too much of their time focusing on the question of what condition someone has, as opposed to what it is that they actually need, that might risk missing really what the key question is here. And instead the line manager resorts to a tick list of adjustments associated with a particular condition and loses sight entirely of the individual in front of them whose needs actually may well be very different. So it's about a needs-led approach to reasonable adjustments in the first place.
David: So that's back to the familiar problem of assumptions being made and managers need to be careful to avoid making assumptions to ensure that they actually get to the bottom of what the individual needs.
Alan: That's right. And in fairness to line managers, let's give credit where it's due, many line managers do this already often in other contexts. One might take the example of mental health conditions or stress at work, which as we know and line managers know there is no one-size-fits-all approach in terms of the support or adjustments that may require to be made.
It impacts everyone differently. And employers are well used to, for example, using stress risk assessments, which have the purpose of focusing very much in on and honing in on individual needs. It's a very similar suggestion that's been made by this report in terms of providing support for workers whose neurodivergence placed them at a disadvantage compared to other colleagues in the workplace.
David: I'm interested to understand what, if anything, the report says about how adjustments are implemented, what sort of approach is taken. Is anything said there, Alan?
Alan: A number of interesting things are said there by the report and two interesting recommendations in particular. The first one, which I think is really good advice, is the need to triage adjustments and make those which are quick and simple straight away, without delay. The report appreciates that in some cases it may well be that there's a range of adjustments, some of which need to be considered , which might be more complex in nature.
It may require the employer to take some specialist advice as well. But get the easy stuff right and get that in place right away. Don't put everything on hold as part of an extensive support program. And one obvious example that struck me when I was reading this yesterday is there a need to wait for what occupational health comes back to say if somebody is telling you that they're really struggling with their working environment because of X, Y, and Z? That strikes me as something whereby an employer can act on that information, albeit say, "Look we're going to tell occupational health what we're already doing, but let's try and get this right for you just now." So make the quick and simple adjustments sooner rather than later is the first point. The second point, and actually this is one that has come through in a number of Tribunal cases as well, is keeping them under review and making sure that there is a strong feedback loop, as described in the report, to ensure that changes are being effective. Again, there's more than one case where the employer has made certain adjustments, but they've almost seen it as a once and done exercise and assumed that everything would be all right from that point onwards and, of course, that's just simply not the case. And in fact, even worse I was speaking at a conference last month, and I was talking about a case where the employer had scheduled regular catch-ups with the individual to make sure that the adjustments were working. And of course, you know what's coming next, David.
The catch-ups just didn't take place. They started off well, and then they just tapered off and before we knew it the issues arose because the individual just wasn't having the message repeated to them that they needed in that case. So try out adjustments ensure a strong feedback loop. And I think the last point I would mention here is I thought this was a really interesting recommendation. It's about how we view reasonable adjustments and how we reframe them in a completely different light so that organisations view them as performance optimisation for all staff to the benefit of absolutely everyone. In other words, it's almost approached through the lens of getting the absolute best out of everyone performance-wise, and not approached from the rather negative, mealy-mouthed description of making exceptions or giving people special treatment which can, as we know, create both stigma and resentment the in the workplace.
So it's a completely different way to view reasonable adjustments. I quite like that myself.
David: What I would add to that, Alan, is you mentioned, first of all there, the, quick and simple let's try it and see if it works type thing. The willingness to look at things as a trial. "We don't know. This might work. It might not work," and I've seen employers who often say, "No, we don't want to do this until we're sure it's the thing that needs to be done."
But there's no shame at all in saying, "We don't know. Let's see if this works and review it, and if it doesn't, we'll look at something else."
Alan: Completely agree. I have seen that a number of times myself. I've seen a trial period succeed almost in circumstances where the employer was convinced at the outset that it wasn't going to work. That underlines the importance of giving it a go.
David: That brings me onto the next question that I've got for you, and that is really how do employers assess if they're getting this right?
Alan: Well, we've spoken about the individual level already in terms of the feedback loop, that making sure that adjustments are kept under review and that it's not once and done, that they are refreshed and reviewed and perhaps added to regularly. But as we know, if we step back from the individual position, we live in a world, don't we, of data and analytics and the report recommends specifically that employers make greater use of whether it be dashboards or data to monitor are we getting recruitment right? And when we get recruitment right, what about progression, career progression? Are there gaps that we need to think about there? And are we getting it right, not just at some levels, but across all levels of an organisation? In other words, how do we measure it? How do we ensure that our practice is actually meeting our aspiration? Because it's easy to say, " We are a neuroinclusive employer, and this is what we do." It's about having the data that then backs that up. And I think at the macro level, to call it that I think that's the best way forward. It's a great idea.
David: In the greatest sense I suppose the merit of the report and all that flows from that is that workplaces will be better and more inclusive workplaces, and as you say, performance will be improved for all. Alan , do you think the recommendations will help manage employment risk arising so you're less likely to see cases ending up in Employment Tribunal or in grievances or whatever?
Alan: Absolutely. I think the report is a great read for that reason. I think it does help organisations manage and mitigate current employment law challenge that undoubtedly exists, because we know that Tribunal claims do come from things like an unnecessary focus on diagnosis or delay in implementing reasonable adjustments or not keeping them, under review. We also know from research published by ACAS last year that one in five of the UK population is estimated to be neurodivergent. And a separate study last year shows that it now accounts for 10% of all occupational health referrals. So properly supporting neurodiverse employees has really become a key wellbeing issue for employers, with it being especially important, I would say, that line managers feel well-trained and well-equipped to deal with these issues when they arise, and indeed, moreover, that they can do so proactively. And I think it's against that particular background that this report and its recommendations actually are very timely. It comes at a great time. Many employers are very interested in these issues, and are taking forward initiatives in this space, and this report can only help those employers navigate the employment law risks here also.
David: And you know, Alan, I'm going to ask you this question. If an employer was to come to you and say, "Alan, we've heard all about this and we've had a quick look at this report. What one thing do you think we can do tomorrow that would be the best start?" What would you say to them?
Alan: Well, there's a lot in the report. There's nine specific recommendations, but if there was one thing I would focus on, it would be getting reasonable adjustments right. And I think if we look at the two sides of that, one is the proactive side. So do what you can to try and make the workplace neuro inclusive to begin with. And let's agree that not everyone has the luxury of moving to a fancy new office where there can be all manner of different working environments. But what can you do with your existing footprint? Or what can you do to make your recruitment practices more neuro inclusive? So looking at that side of things, and then I think on the individual level, it really is about getting reasonable adjustments right. Get the quick things implemented sooner rather than later. Take time listening to individual needs so that you, again, you're not making assumptions, you're not taking this checklist approach.
And when you do make them, do ensure that feedback loop is in place. Are they working? Are they continuing to work? Because that is absolutely key, I think, here to getting it right. That blend of proactivity and dare I say it, reactivity. There's always going to be a reactive element here that's required, which we touched upon earlier. I think that answers your question probably by sneaking in three things that employers should do.
David: That's not just one, but I think we'll let you have that one, Alan. And as you said, it's a long document, but it's a worthwhile and easy read and one which I think really all employers should be looking at.
Alan: It's the kind of thing I think that's particularly useful because the risk would have been if the, the report had just focused on policy ideas for Government. And there are policy ideas for Government in the report as well some of which are interesting and in fact, some of which are already being implemented elsewhere. Things like extending the time limit for claims of disability discrimination to be brought. Well, that's already been done in a more general sense. Disability pay gap reporting as well. Again, in terms of neurodivergent employees, are they progressing within employment?
So there are policy things in there too. But what's much more interesting to me and much more valuable, I think, to listeners is the practical guidance to employers. So I commend the report to listeners to have a look at.
David: We'll include links to the report. with the programme notes to this podcast. And of course, if anyone wants to know anything more about this, they can contact you, Alan
Alan: Absolutely. Very interested in this issue myself and very happy to advise anyone that we can on it.
David: And for those of you who don't already do so, we have a free employment law e-news every month. If you don't already subscribe please email us at employment@mfmac.com and we'll get you added to that list. And please subscribe to the podcast and tell others that you like it. So thanks again, Alan. A pleasure as always to have you on the podcast.
Alan: Thanks, David
