17th-23rd March marks Neurodiversity Celebration Week here in the UK. As part of these celebrations, we have dedicated this weeks’ blogs to exploring awareness of neurodivergence in the workplace.  Earlier this week, we documented how HR can take action to create a more inclusive environment for neurodivergent colleagues. In this article, we consider the legal obligations owed by employers to neurodivergent employees, and the practical steps HR can take to meet them.

Neurodivergence as a disability

Neurodivergence is a broad term covering conditions such as autism and ADHD, each affecting individuals differently. Whether it qualifies as a disability under the Equality Act 2010 depends on the impact, not just the diagnosis.

A condition is considered a disability if it has a substantial and long-term negative effect on day-to-day activities. The key test is whether the impact is more than minor or trivial.

Normal day-to-day activities can include social interaction and communication. The employment tribunal concentrates on the impact of the condition rather than its medical diagnosis.

If a neurodivergent worker meets this definition, they are legally protected and have the following rights:

  • to reasonable adjustments
  • to not be discriminated against
  • not to be treated unfavourably for a reason related to their neurodivergence (unless such treatment can be objectively justified); and
  • not to be subjected to harassment related to their neurodivergence.

The relevance of ‘masking’

Many neurodivergent individuals work very hard to mask their condition – to appear neurotypical to the outside world. This does not necessarily mean that their condition won’t be a disability.

Government guidance[1] confirms that coping strategies can break down, especially under stress and that this possibility must be taken into account when assessing the effects of the impairment.

Environmental factors like lighting, noise, stress, and fatigue can also worsen or lessen the impact of an impairment. Government guidance[2] stresses that, although an impairment may be less severe in some environments, this does not mean it doesn’t have an overall substantial impact on daily activities.

If an employee approaches their manager and reveals that they are neurodivergent, or that they think that they might be, the employer’s response should be to offer support, not to trivialise their condition.

[1] Paragraph B10 Government guidance on definition of disability

[2] Paragraph B12 Government guidance on definition of disability

Neurodivergence and reasonable adjustments

Neurodivergent conditions such as ADHD, autism and dyslexia will often meet the legal definition of disability under Equality Act 2010. This engages the positive duty to make reasonable adjustments to remove barriers that put neurodivergent employees at a disadvantage in the workplace.

For neurodivergent employees, reasonable adjustments might include:

  • Flexible working (e.g. remote work or adjusted hours)
  • Quiet spaces to reduce sensory overload
  • Clear, structured communication (written instructions over verbal briefings)
  • Assistive technology (speech-to-text software, noise-cancelling headphones)
  • Extra time for tasks or training

The key is open dialogue. Your employee is going to be able to explain their needs better than anyone else. As Dr Steven Shore, an autism advocate, says: “Once you’ve met one autistic person … you’ve met one autistic person”. Individuals diagnosed with neurodivergence present with unique strengths and difficulties and experience characteristics of their disability in different ways. Employers need to be aware of this and work with each impacted employee to find practical solutions that support their strengths while meeting business needs. A small change can make a huge difference!

How the tribunal approaches claims

Employment tribunal claims referencing neurodivergence are on the rise. Here are a few which demonstrate what notto do – and the associated cost of getting it wrong:

In Sherbourne v N Power the Claimant had Asperger’s syndrome and was required to work in an open plan setting with a busy walkway behind him; this caused him to feel overwhelmed and distracted. The tribunal found that there had been a failure to implement reasonable adjustments to the physical workplace.

In Borg-Neal v Lloyds Bank Plc the dyslexic Claimant attended a training session on race discrimination awareness for line managers. He asked a question during the session about how to handle a situation where the ‘N-word’ was used. He did not say ‘the N word’, he used the full word. He was dismissed for gross misconduct. He claimed that his dyslexia had caused him to use the full word and prevented him from being able to call to mind an alternative phrase quickly. His claim for discrimination arising from a disability succeeded and he was awarded almost £500,000 in compensation.

In Jandu v Marks and Spencer the dyslexic Claimant was selected for redundancy after receiving low scores for written communications. The tribunal found that the Claimant’s issues with written communications arose from her dyslexia and that, in failing to modify the selection criteria to remove the disadvantage the Claimant was placed at, the Respondent had failed to make reasonable adjustments. She was awarded £54,000 in compensation by the tribunal.

In Holland v A&A Coach Travel the Claimant was a coach driver who had Asperger’s syndrome (a form of autism). He was subjected to truly awful abuse by his co-workers who called him “special needs” and an “imbecile”, amongst other things.  The tribunal found that he had been harassed and that the employees had subjected him to “clear abuse and belittling …..related to his impairment of Asperger’s syndrome”.

Key takeaways

  • Neurodivergence can be a disability – Employers must assess each case individually and comply with the Equality Act 2010.
  • Reasonable adjustments aren’t special treatment – Simple changes like flexible working, quiet spaces, or assistive tech can remove barriers and help employees thrive.
  • Getting it wrong is costly – Tribunal claims are rising, with employers facing significant awards for failing to accommodate neurodivergent employees properly.