A recent study by Zurich UK (November 2024) found that 63% of neurodivergent workers believe that employers consider their neurodiversity a “red flag”.
As a result, almost half (47%) initially hide their conditions from prospective employers, and 51% choose never to divulge their neurodiversity at all.
If these statistics are representative of the general workforce, there is an evident need for change. This is especially true in sectors such as media and technology where “thinking differently” helps drive creativity and innovation.
What is neurodiversity?
Those who are neurodivergent have differences in brain processing to those considered “neurotypical”.
Neurodivergent people may interact differently in social situations and there may also be differences in the way in which they learn, process and retain information. This in turn may affect areas such as sensory processing and attention.
Neurodivergent conditions include:
- ADHD (Attention Deficit Hyperactivity Disorder)
- ASD (Autistic Spectrum Disorder)
- Dyslexia (difficulty with words, reading and/or writing)
- Dyspraxia (difficulty with fine motor skills)
- Dyscalculia (difficulty with numbers).
Is neurodiversity a “disability”?
Sometimes, but not always. The Equality Act 2010 defines a “disabled” person for employment law purposes as someone with a physical or mental impairment that has a substantial adverse impact on the person’s ability to carry out normal day-to-day activities. The impairment must have lasted, or will last, at least 12 months.
So, depending on the individual’s neurodivergence and how it affects them day to day, the individual may be considered “disabled” for the purposes of employment law. This offers the employee additional protections, including: against discrimination, harassment and victimisation on the grounds of disability, and the right for reasonable adjustments to be made at work, that remove or reduce the effect of a disability.
These are sometimes described as “day one” rights, which means that there is no employment qualifying period necessary to claim protection – however, in reality, these are more like “minus day one” rights, as the protection also covers advertisement, application and selection processes pre-employment.
As an employer, can I ask applicants about their neurodiversity and its impact?
The Equality Act 2010 provides that other than in limited circumstances, an employer should not ask about the health or any disability of an applicant before offering a job.
Once an offer is made, and if any health/disabilities are disclosed, then the employer must look at making reasonable adjustments (where possible) to cater for the candidate’s disability. This will include asking about and taking steps in relation to any neurodiversity.
Likewise, if a candidate informs the employer during the recruitment process that they have a disability (such as a neurodivergence) which may affect them, the employer will also be under a duty to consider making reasonable adjustments to ensure the candidate is not treated less favourably on the grounds of their disability.
The Zurich UK report contains some useful suggestions from those who are neurodiverse and who find the recruitment process a challenge, including identifying clear expectations of candidates in advance, removing group interviews and assessments and and avoiding the use of ambiguous language.
What if we get it wrong?
If an applicant is considered to have a disability under the Equality Act 2010 and they have been unable to secure employment because of (or for reasons connected with) their condition, the individual may be able to make an Employment Tribunal claim for disability discrimination.
This is also true where the recruitment processes itself has a detrimental effect, resulting in the person not getting a job or being otherwise disadvantaged.
If adjustments are not made to the recruitment process for such a person, they may also be able to claim for failure to make reasonable adjustments.
And the cost of getting it wrong can be significant: the maximum award made by an Employment Tribunal in the period April 2023 to March 2024 was £964,465, with an average award of £44,483.
In order therefore to avoid mistakes, and to capitalise on the skills and experience of those that do think differently, such as in the creative industries, employers may also need to think differently about how and who they recruit.
If you’re a business and unsure of your obligations during a recruitment process, need some help diversifying your workforce, or would like to chat through your business’s employment issues, please reach out to our employment law expert, Jane Smith. Jane would be very happy to hear from you: [email protected].