Neurodivergence: legal responsibilities of employers

Last month marked Neurodiversity Celebration Week, an opportunity to raise awareness of neurodivergence in the workplace. Beyond awareness, employers have legal obligations under the Equality Act 2010 to support neurodivergent employees.

Neurodivergence as a disability

Neurodivergence covers conditions like autism, ADHD, and dyslexia, all of which affect individuals differently. Whether a condition is a disability depends on its substantial and long-term impact on daily activities, such as communication and social interaction. If it meets this threshold, employees are legally entitled to:

• Reasonable adjustments
• Protection from discrimination
• Fair treatment unless objectively justified
• A workplace free from harassment

The impact of ‘masking’

Many neurodivergent employees mask their condition, appearing neurotypical while struggling internally. Government guidance confirms that coping mechanisms can break down, particularly under stress. The impact of the condition should be considered without coping strategies if it is possible that these will break down. Employers must also consider environmental factors like noise, lighting and fatigue when assessing workplace impact.

Reasonable adjustments

Employers have a positive duty to remove workplace barriers for neurodivergent employees. Adjustments might include:

• Flexible working (adjusted hours, remote work)
• Quiet spaces to reduce sensory overload
• Clear, structured communication
• Assistive technology such as noise-cancelling headphones
• Extra time for tasks or training

Every individual is different, so open dialogue is key. 

Tribunal cases: getting it wrong can be costly

There are several tribunal cases which highlight the consequences of failing to support neurodivergent employees:

• 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. An employment tribunal found that there had been a failure to implement reasonable adjustments to the physical workplace. 
• Borg-Neal v Lloyds Bank: Dyslexic claimant awarded £500,000 after being dismissed for using a racial slur in a training session, claiming his condition prevented him from finding an alternative phrase quickly.
• Jandu v Marks & Spencer: Tribunal ruled that failure to adjust selection criteria for a dyslexic employee in a redundancy process was unlawful. The Claimant was awarded £54,000

Summary

• Neurodivergence can be a disability – Employers must assess each case individually.
• Reasonable adjustments should be considered – Simple changes can remove barriers and improve inclusion.
• Ignoring legal duties is costly – Tribunal claims are rising, and failing to accommodate neurodivergent employees can result in significant compensation awards.