Supporting neurodivergent employees in STEM: why reasonable adjustments matter

Neurodiversity describes the differences in how people’s brains behave and process information. Some of the most common types of neurodiversity include attention deficit hyperactivity disorder (ADHD), autism, dyslexia and dyspraxia.

It is estimated that 1 in 7 adults in the UK are neurodivergent with 3% of employees in STEM fields diagnosed as neurodivergent. It is, however, thought that the number of neurodivergent employees in STEM without a formal diagnosis could be as high as 50%. The discrepancy is likely due to the large assessment demand, with some NHS assessment waiting lists as long as 8 years.

While it is recognised that neurodiverse employees can bring unique strengths and benefits to STEM, with their creative problem-solving abilities and high attention to detail, misunderstanding and support can leave employers open to disputes and tribunal claims.

With the proposed welfare reforms introduced by the Labour Government, the number of neurodiverse individuals entering the workplace in STEM fields is likely to increase. It is therefore imperative that employers learn to adapt and work to promote inclusive and accommodating workplaces to reduce the risk of legal issues and maximise their employees’ potential.

The law

The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. This would cover neurodiverse conditions, if they significantly impact daily functioning.

Employers of an employee with a disability are legally required to make reasonable adjustments.  That may extend to neurodivergent employees or those presenting symptoms that substantially impact their performance, even in the absence of a formal diagnosis.

Employers should be aware that not all neurodivergent employees will have received a formal diagnosis or will consider themselves as having a disability. Nevertheless, obligations under the Act will still arise if an employer knows, or could reasonably be expected to know, that an employee has a disability.

A failure to make reasonable adjustments could lead to claims of discrimination, carrying legal and reputational risks.

Reasonable adjustments

Employers have a legal duty to make reasonable adjustments where a disabled person is at a substantial disadvantage or where a policy or practice negatively impacts them from performing their role.

In establishing the extent of an employer’s obligations, the employer must carry out a balancing exercise between the needs of the individual and the resources available to the business. In considering what constitutes as ‘reasonable’, an employer should consider if the adjustment:

• Will remove or reduce the disadvantage
• Is practical to make
• Is affordable
• Could harm the health and safety of others

People often experience neurodivergence differently and the challenges will not be the same for everyone. Employers must avoid adopting a ‘one-size fits all’ approach and instead should ensure frequent and open communication with the individual to understand what adjustments are suitable.

Practical examples

Although best practice is to speak to the individual and work together to find practical solutions, we have outlined below a few practical adjustments that can be implemented by employers and may amount to reasonable adjustments:

Concentration difficulties:

• Noise-cancelling headphones
• Fidget tools
• Regular breaks
• Quiet working zones

Written communication difficulties:

• Speech-to-text software
• Verbal explanation of written information or vice versa
• Coloured backgrounds on documents
• Implementation of clear and concise communication methods

Time Management difficulties:

• Visual planners
• Frequent reminders
• Routine check-ins

Sensory overloads:

• Quiet spaces
• Flexible working or working from home arrangements
• Computer screen filters
• Advance notice of change

Rethinking the disciplinary procedure

When dealing with performance or conduct issues, employers should assess whether neurodivergence is a contributing factor. If so, an employer must make sure they have done all they reasonably can to support an employee. Failure to do so could lead to an employee making a claim to an employment tribunal.

The obligations on employers to make reasonable adjustments imposed by the Equality Act can extend to the disciplinary process and it is therefore key that employers consider the need for flexibility in how the process is handled.

Before commencing a disciplinary process, it may be sensible to ask the employee what adjustments might be needed to accommodate the employee’s needs through the disciplinary process. These adjustments, if reasonable, should then be implemented as part of the process.

Conclusion

Employers seeking to comply with their legal obligations, and to build an inclusive workplace, should take time to understand neurodivergent experiences, and consider what steps can be taken to support such employees. Promoting neurodiversity in STEM encourages diverse perspectives and innovative thinking and will be essential in ensuring STEM fields continue to grow.

This update contains general information only and does not constitute legal or other professional advice.

Dawn Robertson, Partner: dro@bto.co.uk / 0131 381 2408

Amy Campbell, Trainee Solicitor: aca@bto.co.uk / 0141 673 3255