Thinking Differently: neurodiversity and work

Transcript

Jonathan Rennie

Hello and welcome to Employment Law Focus, I'm Jonathan Rennie a Partner in TLT's Glasgow office and I'm joined today by Sarah Maddock, Senior Knowledge Lawyer from our Bristol office.  Now in this episode we will be looking at an issue which affects around 15% of people which until fairly recently has been somewhat hidden in the shadows and that's the idea of neurodiverse employees, specifically we will be trying to explain what neurodiversity means and will then go on to explain how employers can benefit from attracting neurodiverse candidates and then obviously supporting their onboarding and their development at work in order to unlock their full potential. 

We will then go on to look at some of the trickier issues as to how employers can deal with the hidden nature of these conditions and what additional things need to be considered if an employment tribunal claimant has a neurodiverse condition.

Before we get into all of that Sarah what employment law updates have caught your eye over the last couple of weeks?

Sarah Maddock

Maybe listeners will have heard that the special redundancy rights for people expecting babies are going to be reformed.  Employees who are selected for redundancy whilst on maternity leave have the right to be offered a suitable alternative vacancy and that's in preference to other employees whilst they're off work on maternity leave. 

What's changing about that is that this right is going to be extended so that it will apply from when an employer is notified of an employee's pregnancy, right through until the end of six months after the end of maternity leave so this additional right will cover a considerably longer period of time for expectant and new mothers than the current protection which only applies during maternity leave.

Jonathan Rennie

That sounds a really positive development Sarah and it looks like almost a doubling of the protection period which is great news.  When do you think that change is actually going to come into force.

Sarah Maddock

It's been on the cards for a while Jonathan but we don't know exactly when the legislation's going to come into force.  It's working its way through parliament now so our best guess is that it's unlikely to come into law before the end of this year but it's definitely one to watch and there's likely to be plenty of advanced notice before the legislation actually comes into effect so employers will have plenty of time to prepare.

Jonathan Rennie

Thanks Sarah. Another potentially more dramatic change possibly coming down the line – there's been a huge six month trial of a four day working week which has recently ended.  No less than 92% of the businesses that took part said it was a success and are actually continuing the trial with around 30% making it a permanent change immediately.  In case you haven't heard about the trial, it ran for six months with nearly 3,000 employees across 70 companies taking part and employees were allowed to take 20% of the week off work with no reduction in pay in return for committing to 100% productivity so you might do the maths and realise that the five day week became a four day week so long as people hit their targets.

At the end of their pilot the companies taking part have reported lower levels of burnout, lower levels of anxiety and tiredness and what I think is really interesting is that sickness absence fell by about two thirds.  Some commentators have said that we may be on the cusp of the next big change in working patterns since the move from a normal six day working week which sounds horrendous to five days early in the last century.

Sarah Maddock

Yeah and I think that's a really interesting point Jonathan because one of the factors that triggered that change from six to five days back in the early twentieth century was technological along with an increase appreciation of the need for a work/life balance and arguably we're moving into another new phase of change to working patterns driven by technological change with natural language AI tools such as chat GPT now reaching the wider workforce and potentially being a game changing development.

There is a lot we could say about this topic but what I have been reading just in the last few days is reports of employees secretly using chat GPT to do their jobs.  Understandably they're keeping this on the downlow and it's being used to speed up tasks such as converting data into spreadsheets, writing blog posts and summarising really complicated topics into short takeaway points so it's not yet at a point where it's completely replacing human input but one can't help but wonder how this interplays with disciplinary or capability procedures if employees are effectively outsourcing their work to a robot.

Does it matter if the job is still done properly and the employee is checking and editing the work?  Should employees worry about hiding it and if not, where does that leave us as workers in the long-term?  Will white collar jobs shift more towards editing rather than creating and if it does, will that mean widespread job losses or more positively will it mean more free time for people to focus on the more interesting and fulfilling aspects of their work or even shifting down to working one day less per week Jonathan.

Jonathan Rennie

Definitely, well let's keep an eye on this, there's lots of big questions there Sarah and we'll update in the next episodes.  Returning to the main topic of today's podcast, neurodiversity at work, maybe it would be helpful to start with by answering the very basic question of what does neurodiversity mean, does it include all neurological conditions such as stress or depression or is it something different and perhaps Sarah you can explain a little bit about it.

Sarah Maddock

Sure – I have to admit I'm no neuroscientist but my understanding of the term neurodiversity is that it's not a clinical term as such but refers to a range of conditions which put very simply affect processing of information in the wider sense and that can include impacts on social interaction, learning, attention, sensory processing and other aspects of interacting with the world and other people so a few examples might include conditions such as ADHD, Autism, Dyslexia, Dyspraxia (also known as DCD), Dyscalculia and Turrets Syndrome.  So up until recently these conditions were more commonly diagnosed in children but now we're seeing more adults being diagnosed especially as awareness of neurodiverse conditions is receiving a lot more attention in the press and in social media.  People listening might have watched Chris Packham's documentary "Inside our autistic minds" for example and a number of celebrities have now been speaking publicly about adult ADHD and other neurodiverse conditions and it might be because of this increased exposure and visibility around these conditions that we're seeing an increase in employment tribunal proceedings coming through which are referencing discrimination for being "neurodiverse" and these have actually risen by about a third between 2021 and 2022.

Jonathan Rennie

That's quite a leap in the statistics there Sarah and what I think is really noteworthy to say here is that a lot of people with neurodiverse conditions may be discriminated against because of stereotypical assumptions.  The reality is that there can be increased competencies in certain areas.

For example it's been reported that people with dyslexia are often very good at creative problem solving, there may be enhanced memory and pattern recognition being associated with autism and people with ADHD may go into perhaps a hyper focus which makes them good at completing urgent tasks and coping with setbacks.  So, whilst people with neurodiverse conditions will undoubtedly struggle with some aspects of work, there may be competitive advantages for businesses which design inclusive recruitment processes.  I should say it really is about understanding the individual though and their particular competencies and skillsets and barriers and not defaulting into broad brush assumptions.

Sarah Maddock

Yeah that's right, I would have to agree there Jonathan and just underline the point to listeners, as we're always saying it's about ensuring that you're open to all types of employees and attracting and recruiting employees from the widest possible pool of talent which in this context means checking that your recruitment processes engage with and embrace candidates with neurodiverse conditions.

Jonathan Rennie

Sarah I have heard that GCHQ and BAE systems are examples of employers actively seeking to attract neurodivergent women in this case into cyber security roles.  Is that something you've seen?

Sarah Maddock

Yes I've certainly read about that too and we're going to be looking at recruiting neurodivergent candidates in this next segment.

Jonathan Rennie

So lots of people listening might be wondering what they can do to make their recruitment processes more effective for neurodiverse candidates.

Sarah Maddock

So the first is ensuring that your recruitment adverts are not overly wordy, maybe thinking about visual infographics rather than long paragraphs of text.  A second option could be publishing explicit statements that you will consider reasonable adjustments to a role, that can be really helpful.  It's not a legal requirement but it takes the burden off the candidate or the new recruit.

Third one is tailoring job descriptions to the role so really thinking about what are the key skills needed rather than general personality traits which don't contribute to the role itself and that's been backed up by a report from 2017 which said that 51% of workers on the autism spectrum actually have more skills than the job requires.

Jonathan Rennie

You could also think about adjusting screening procedures to suit neurodiverse candidates and to prevent them being automatically screened out.  You can easily access information from specialist inclusive employment agencies and the neurodiversity and business forum if you need further guidance on this but also in terms of interviewing processes and moving away from conventional assumptions about people being a good cultural fit can be helpful.  Does it really matter to the person's ability to perform the job.  Judging candidates and social behaviour such as shaky hands at interview, making eye contact and engaging in small talk may exclude some very competent and capable neurodiverse candidates.

Finally we would suggest that it may be advisable to remove unexpected tasks or questions from an interview process as much as possible.  For example giving candidates as much notice as possible of questions allowing sufficient time for responses.

Sarah Maddock

So I think it's worth mentioning here that although of course not all people with neurodiverse conditions will be classed as disabled within the legal definition, if a condition has a substantial and long-term adverse affect on a person's ability to carry out their normal day-to-day activities then it will likely fall under the legal definition of disability and that means that the individual will be protected against discrimination and the employer will have to make reasonable adjustments to remove or minimise any disadvantage caused to them by their condition.

Although having said all of that, employers do not need to take all steps that it could possibly take to completely fix so to speak the issues caused by a condition entirely.

Jonathan Rennie

A good example of the wide scope of the duty to make reasonable adjustments for neurodiverse job candidates was shown in the case Noor v The Foreign and Commonwealth Office.  In this case a job applicant suffered from dyslexia and dyspraxia and adjustments to an interview were made but there was a mistake in that the information provided in advance to the claimant was not detailed as to what those changes were which clearly put him at a disadvantage because of his condition.

An employment tribunal was raised and the tribunal struck out the claim as having no reasonable prospect of success on the basis that the determination was he would not have been appointed to the role in any event even if he had been made aware of the job requirements before his interview.  But the twist in the tale is that the appeal tribunal overturned that decision and it said the purpose of an adjustment is to create a level playing field for the disabled person so if a reasonable adjustment should have been made, it will still be possible to bring a claim for a failure to make those adjustments – even if the applicant would not have obtained the job if the adjustment had been made.  Albeit there is a potential for compensation in a case such as this to be limited to injury to feelings rather than financial losses due to lost employment.

Sarah Maddock

And just following on from that of course the duty to make reasonable adjustments will apply equally to physical premises at work and workplace policies, procedures and practices as well as recruitment practices and that leads us neatly onto the next part of the episode where we're going to ask what employers can or should be doing as part of their onboarding processes for neurodiverse employees.

Jonathan Rennie

Again, onboarding neurodiverse employees is a very wide-ranging topic but what are some of the key things to think about?

Sarah Maddock

So issues around arrangements for onboarding employees are particularly relevant to conditions such as dyslexia, dyspraxia or autism.  To give a case example, there was an employment tribunal decision called Bullos v Shelter where a dyslexia centre suggested various adjustments which an employer could have made for a dyslexic employee in order to support onboarding him into a new role.  They suggested for example, specialist software, a spellchecker, extra time for completing his tasks, proofreading support, written confirmation of verbal instructions and giving him a quiet place to sit for reading and writing really complex pieces of work and although it's not a binding decision, an employment tribunal did say that all of these were reasonable potential adjustments for that employee.

Jonathan Rennie

I think having worked on some of these cases in the past Sarah I am very aware that things like giving extra time for completing a task become pretty difficult for employers as to how long a task should take and what the moderation should be so we have to acknowledge that these are a menu of options and you can dip into them to help with individual cases.  The point being of course there's not really a one size fits all approach to reasonable adjustments.  Speaking and consulting with an employee to get their input is very very important and then tailoring the practices for learning and making sure that that's well documented and understood.

Sarah Maddock

Yes and to that end, Line Managers are going to need to be aware of how neurodiverse conditions show up at work and have got to be capable of empathising and devising practical strategies for supporting individual worker's requirements so as we would always say, making sure that Managers are trained is going to be very important and we saw this illustrated in a case called Sherbourne v N power where a Manager completely failed to understand the effect of a claimant's autism and didn't provide any of the necessary adjustments.

The claimant in that case, Mr Sherbourne was required to work in an open plan setting with a busy walkway right behind him and his Manager completely failed to implement recommendations that would have made it easier for Mr Sherbourne at work and this lead to him feeling completely overwhelmed and distressed by his working environment and that was found to be not only indirect disability discrimination but also a failure to make reasonable adjustments.

Jonathan Rennie

So using that case as an example Sarah, it might be useful for some employees to have a diagnostic or workplace needs assessment and certainly I know for dyslexia that there are specialist organisations out there that do that sort of thing.

A diagnostic assessment is intended obviously to establish more information about an individual's particular type of neurodiversity and it will particularly focus on their role and the degree of usefulness of these assessments may very well depend on the level of the employee's own insight into their condition because I think as we've discussed sometimes these conditions develop outside of childhood and individuals are diagnosed later on in adulthood.  These assessments might for example suggest whether working from home or a busy office environment would suit the individual's needs.

Sarah Maddock

Yes and listeners might want to make a note that there's an organisation called Neurodiversity in Business and it has two really useful onboarding and induction checklists available on its online hub and these are designed for both small and large employers.

We'll include a link to their website in the episode notes but it includes for example notes on explaining what various aspects of working practice are going to mean and giving clearest instructions about a new role and discussing work profiles and work adjustments.  Plus it also suggests providing information about local places to eat and the social culture of the workplace so some really practical guidance there.

Jonathan Rennie

We have practical experience of some employers going a little bit further and creating a neuro minority policy.  What sort of information do you think might be in such a policy Sarah?

Sarah Maddock

Well I think it could include a whole range of information but some examples could include things like information about how to raise concerns about working arrangements, where to seek support, what workplace adjustments might be available and who you could contact about them or maybe even recruitment targets for neurodiverse employees.

Jonathan Rennie

Really that policy would need to be adapted to the particular requirements of the organisation but it's definitely worth considering on the back of listening to this episode.

Sarah Maddock

Yes and in terms of general working arrangements to support neurodiverse employees, I've got a number of tips to suggest.  First is offering a permanent place to sit in an open plan office and perhaps offering noise cancelling headphones.  Another idea is to create quiet spaces and extra time to undertake work for employees with dyslexia or dyscalculia, allocating work which makes the most of neurodiverse traits is another practice which could be considered so for example a person with ADHD hyper focus abilities would be likely to do well working in projects which require short-term sprints of work.

On the flip side of that, if a project requires a sustained period of detailed work which would benefit from very objective analysis, this may be more suited to an autistic person.  Another idea is to consider offering flexible working arrangements whether from home or in the office and consider if you can be flexible about setting fixed start and finish times.

Jonathan Rennie

I think we also know that social interactions at work can sometimes be tricky for people with neurodiversity so consider offering a range of different ways for your teams to collaborate and don't link attendance at events with promotion or reward structures.  You might also want to think about mentoring or coaching programmes to support neuro-diverse employees.

So we've taken a look at recruitment onboarding and support at work for neurodiverse people and in this last section we've got two key questions we wanted to answer on neurodiversity.  The first is how do employers deal with issues related to neurodiverse conditions often being hidden or difficult to spot and secondly, if unfortunately things do go wrong and you end up in an employment tribunal, what additional things do you need to think about if the claimant has a neurodiverse condition?

Sarah Maddock

If I could pick up the answer to the first question there about knowledge, yes this is definitely a tricky one but an employment tribunal is not going to let an employer off the hook if they deliberately turned a blind eye to an employee who was struggling so employers are going to be fixed with knowledge of a disability if they knew or if they ought reasonably to have known about the disability.  But what does that actually mean in practice?

Ultimately it will be for an employment tribunal to decide but if we look at the equality and human rights commissions code of practice, it does provide some useful general guidance.  It says at paragraph 5.14 "employers should consider whether a worker has a disability even where one has not been formerly disclosed as for example not all workers who meet the definition of disability may think of themselves as a disabled person" so that's the guidance and then building on that, the code also says that employers should do all that they can reasonably be expected to do to find out if a worker has a disability which on the face of it sounds fairly onerous but remember it's only what's reasonable.

Jonathan Rennie

Yes I saw a case reported in the legal press recently against a firm of solicitors which illustrates the limits of expectations on employers.  This firm dismissed a paralegal who suffered from ADHD after he was late on seven of the nine days that he worked for the firm and took a two hour lunch break to attend his own eviction hearing.  The claimant said that his behaviour should have been a red flag for the firm but the tribunal disagreed and said that the claimant hadn't told his employer about his difficulties and there was no reasonable expectation that the firm could have worked it out for themselves so there was no liability in this case.

Sarah Maddock

And I think another point to make on that is that although employers do need to have an enquiring mind when it comes to indicators of neurodiverse conditions, they aren't expected to diagnose mental disorders so if a potential issue seems apparent, it would be good to discuss that with the employee in question and consider what adjustments could be put in place and what support might be needed.

Jonathan Rennie

So moving on to look at the second question we wanted to answer in this section, what additional things do employers need to think about if they have a claim brought against them and the claimant or one of the witnesses suffers from a neuro-divergent condition?

Sarah Maddock

Now this is going to be quite important because employment tribunal proceedings as we all know are difficult and stressful even for neurotypical people.  One source of additional help is the intermediary service provided by the Courts and Tribunal Service and we'll put a link to their online guide in the episode notes but they can provide impartial recommendations to the court or tribunal about a claimant or witness specific communication needs so for example if a person needs extra breaks, how long someone might need to answer a question and how questions might be re-phrased by a Judge to help a person or during cross-examination.

Jonathan Rennie

Yeah we know also from our team that Judges are asked to refer to their very own comprehensive guidance document on equal treatment which is called the equal treatment bench book.  Again we will put a link to this in the notes in case you want to take a look but this explains to judges about best practice for supporting tribunal users with a range of mental health conditions including those with neurodiverse conditions and examples of adjustments within that document include clarity in the layout and formatting and wording of correspondence, increased face to face case management, preliminary hearings or if preferred by telephone and staggering the timeline for any orders or instructions plus longer timescales for compliance, giving explicit instructions and expediting the final hearing in advance planning so all of those additional thinking points as to how to best manage proceedings where people have neurodivergence.

Obviously in respect of actual hearings, it will be up to individual judges to consider adjustments but there might be additional time given to witnesses to provide their evidence, there might be different breaks and there might be the seeking of the assistance from an intermediary.

Sarah Maddock

Yes and if I could add as a post-script to that quickly, the equal treatment bench book might sound a bit intimidating but it's a really fantastic and little-known resource and although it's primarily written to help judges, it's available to anyone online for free and is actually very readable.  It's also got a glossary of conditions including neurodiverse conditions and suggested adjustments then can be made to assist.  It's definitely worth taking a look if you want to learn about any equalities issues.

Jonathan Rennie

Thanks for listening and we hope you found today's episode useful.  If you're enjoying the podcast, please rate and review us on your podcast app.  Email us at emplawpodcast@tlt.com with any feedback and questions or if you have ideas for future episodes.  You can also follow us on Twitter at tlt_employment.