Mark Radford looks at recent cases on hidden disabilities and outlines some steps employers can take when dealing with neuro-diverse employees.
What does Neurodiversity mean?
Neurodiversity is a term covering a number of conditions (such as Autism, Attention Deficit Disorder and Dyslexia) that all affect the cognitive function of the brain.
Neuro-divergence is on a spectrum, and so neuro-diverse individuals can display a range of behaviours. Likewise, the severity of associated behavioural characteristics can vary significantly between individuals.
The matter is further complicated by the fact that an individual may be unaware that they have a neuro-diverse condition or individuals who are aware do not wish to disclose or discuss it. Finally, not all neuro-diverse conditions will amount to a disability.
When will an employee be disabled within the meaning of the Equality Act 2010?
An employee will be disabled if it is demonstrated that they have a physical or mental impairment that has a substantial and long-term adverse effect upon their ability to do normal day to day activities.
An employer will only have a responsibility towards a disabled employee under the Equality Act 2010, where it knows about a disability or should reasonably have known about the disability. Such knowledge gives rise to a number of duties.
Employers will be obliged to make reasonable adjustments for disabled employees and not treat them unfavourably because of their disability.
Meier v BT (2019)
The following two cases identify the risk to employers in failing to take the disability into account when reaching decisions in relation to a neuro-diverse employee.
In the case of Meier v BT (2019), the Northern Ireland Court of Appeal considered whether BT had failed to make reasonable adjustments in relation to a job applicant with Asperger’s syndrome, Dyslexia and Dyspraxia.
BT required the applicant to complete a test as part of its selection programme and they received a low score and were not appointed. They argued that the test wasn’t appropriate for people on the autistic spectrum and that reasonable adjustments should have been made.
BT stated that the test formed part of the minimum requirements for the role and that it was the applicant’s responsibility to inform them as to what adjustments were required.
The Court of Appeal found in favour of the applicant, Meier. They found that BT was aware of the disability and that his disability meant that he was placed at a substantial disadvantage by the test.
Crucially, they also decided that it was BT’s responsibility to identify what reasonable adjustments were required.
City of York Council v Grosset (2018)
A second Court of Appeal case – City of York Council v Grosset (2018) considered a decision to dismiss a senior teacher who had shown pupils an inappropriate film.
The School was aware of the disability and was aware of the deterioration in the employee’s physical and mental health which was occurring because of changes to his working environment following a change in management.
It was accepted that the employer was not aware of the likely consequences of these issues in terms of his mental health and his behaviour. Whilst upholding the legality of the decision to dismiss, the Court of Appeal found that the employer’s treatment of the employee amounted to discrimination by reason of the employee’s disability and that the decision to dismiss was a disproportionate response and which amounted to unlawful discrimination.
Critically, the Court of Appeal found that an employer could still be guilty of disability related discrimination even if it could not reasonably have been aware that a particular behaviour would arise from the employee’s disability.
Steps employers can take when dealing with neuro-diverse employees
Where a neurodiversity issue is disclosed or becomes apparent, an employer should attempt to understand what this means for the employer/employee relationship.
The employer should consider discussing with the employee what the key issues or pressure points are and what steps the employer can take to mitigate the impact of these on the employee.
In cases which are more complex or where the employer suspects the employee may have a disability within the meaning of the Equality Act 2010, the Employer should consider a referral to Occupational Health or taking other specialist advice on what reasonable adjustments can be made and what can be done to make the employment relationship work.
Specialist advice is often available from charities dealing with the type of disability in question. In some cases, a risk assessment may also be appropriate.
One of the issues in the Grosset case was when the new manager took over, the employer failed to brief him on the employee’s illness and the steps already agreed and taken to mitigate its impact.
The employer should remember to communicate with its managers where necessary and consider making a dedicated channel of communication available and keep that open for the employee.