Neurodiversity employment tribunals are increasing: What can your organisation do to reduce the risk?

In the fast-evolving landscape of workplace diversity, the issue of neurodiversity discrimination has emerged as a pressing concern. Recent data reveals that employment tribunals have witnessed a significant uptick in cases involving allegations of neurodiversity discrimination, with a staggering 102 cases reported in the past year. Even as organisations are increasingly aware of the benefits of a neurodiverse workforce and the competitive edge that this can bring, paying lip service with empty words policies is not enough: organisations must adopt proactive measures to ensure the well-being and fair treatment of neurodivergent employees.

The Neurodiversity Discrimination Landscape

Neurodiversity is the term that describes the idea that there is naturally occurring variation in the human brain, which can impact a series of brain functions such as how we interact with one another and how we process information. 

According to research conducted by the employment law firm Fox & Partners, the cases brought in tribunals encompass a broad spectrum of neurodiverse conditions. A total of 30 cases cited dyslexia, 25 mentioned autism, 19 related to ADHD, and 14 each revolved around dyspraxia and Asperger’s syndrome. 

One common thread among these cases is the perception that neurodivergent employees’ performance or behaviour in the workplace is unfairly assessed due to their condition. This has raised concerns about whether employers are adequately equipped to accommodate and support neurodiverse individuals, or if they are inadvertently contributing to an environment where discrimination claims thrive.

Expert Insights: A Call for Proactive Measures

Ivor Adair, a partner at Fox & Partners, emphasised that although employers are becoming increasingly aware of neurodiversity, this awareness has not yet translated into effective strategies, and this leads to discrimination cases related to neurodiversity reaching employment tribunals. He emphasised that employers should allocate resources to develop a more sophisticated diversity and inclusion strategy, one that explicitly incorporates neurodiversity.

Empowering Organisations to Tackle Neurodiversity Discrimination

What can HR and organisations do to address this escalating issue? Experts offer several key recommendations that will both benefit organisations and also reduce the risk of discrimination claims:

Raise Awareness: Employers must go beyond merely implementing policies. They should actively raise awareness among employees about various neurodiverse conditions to foster understanding and empathy.

Regular Training: Provide regular training: this can help employees and managers better understand the unique challenges and strengths of their neurodivergent colleagues.

Tailored Accommodations: Implementing tailored accommodations that meet individual needs, such as adjustments in the workspace or work processes, can go a long way to support neurodivergent employees. There are plenty of accommodations that can be put in place with little to no investment, and many adjustments, such as flexible or working, will benefit everyone in the organisation.

Support for Line Managers:  An employee’s underperformance might be misinterpreted as a capability issue, when really the employee might be, for example, dyslexic, and all that is needed for improved performance is an adjustment. Ensuring that line managers receive adequate support and training to oversee neurodivergent employees is crucial to prevent performance-related issues from being misinterpreted as capability issues. Reasonable adjustments should be supported even when there is no formal diagnosis or evidence.

Clear Policies: Develop clear policies that address the principles and processes of supporting disabled and neurodivergent candidates and employees. Having a specific policy in place can help organisations avoid unnecessary and expensive tribunals.

Diversity and Inclusion Training: Managers should receive training on unconscious bias and neurodiversity to ensure that their decisions are not influenced by stereotypes. Creating an inclusive environment where neurodiverse employees feel supported is crucial.

Review Every Stage: HR teams should review every stage of the employment life cycle, from recruitment onwards. This includes making adjustments to the recruitment process and considering the unique needs of neurodivergent candidates, including adjustments to, for example, applications and interviews, and onto workplace adaptations.

Effective Communication: Ensure that neurodiverse individuals feel comfortable expressing their needs and preferences by initiating proactive discussions on the topic, asking and then providing what neurodiverse individuals say they need to be able to carry out their work productively. HR should work with different departments to provide necessary accommodations promptly.

What to do next

In this era of growing awareness and emphasis on diversity and inclusion, your organisation can proactively address neurodiversity discrimination. Our customisable policy templates, comprehensive guide, and training can empower your HR department and employees to create an inclusive and supportive environment for neurodivergent individuals. 

Course: Our neurodiversity course examines the nature of neurodiversity, the challenges neurodivergent people face and how organisations can support neurodivergent staff, customers and service users.

Guide: Our comprehensive guide to Neurodiversity at Work gives readers a solid introduction to neurodiversity and how to manage neurodiversity in the workplace, including reasonable adjustments, tips for creating a neuro-inclusive workplace as well as the benefits of doing so, common pitfalls and how to avoid them, and more.

Policy templates: We have created a set of customisable neurodiversity policy templates including templates for workplaces, neurodiverse students at schools and universities, and neurodiverse staff at schools and universities. These can be extremely helpful for setting out clear policies on how to best support neurodiverse individuals as well as how to report and address complaints.

With ‘diversity of thought’ now recognised as being key to innovation and creative problem-solving, employers who are able to attract and support neurodivergent employees can tap into a uniquely skilled talent pool who quite literally ‘think differently’.

Fostering an inclusive workplace isn’t just about compliance. Unlocking the full potential of every employee, regardless of their neurodiversity, is a win-win for both your organisation and its valued team members.

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