At the end of last year, when most companies were winding down for the holidays, London employment lawyer Darren Isaacs found himself surprisingly busy. New inquiries continued to come in from companies with the same problem: When managers raised concerns about employee performance, employees revealed various neurological conditions that might help explain the problem.
The cases all shared similar traits – employees were mentioning conditions such as autism and ADHD for the first time once they had been placed on some form of performance management plan or were facing dismissal, and none of them were able to back up their claims with a diagnosis.
“The intersection between employee privacy, performance management, and managing any neurological condition is always complex for both employees and employers,” says Isaacs, partner at GQ Littler. “It is always difficult when an employee only raises this partly through the management process and not earlier.”
An increasing number of adults have been diagnosed as neurodiverse in recent years, as television and social media have raised awareness of these conditions. An increasing number of childhood diagnoses has also led parents to recognize traits in themselves later in life, while Generation Z expects the same support in the workplace that they received for such conditions at school or university.
As a result, employers are being pushed to provide more accommodations to help neurodiverse people better manage their workloads and careers.
The increased demand has led to a rise in employment claims, with employment tribunals in England, Wales and Scotland handing down 278 judgments in 2023 relating to discrimination on the grounds of disability and references to autism, ADHD, dyspraxia or dyslexia, according to a UK analysis. Law Office of Lewis Silkin. This compares to 193 in 2022 and just three in 2016.
“The main tension lies, on the one hand, between the need and desire to adapt to neurodifference, and, on the other hand, between traditional norms about how people should behave at work,” says Michael Burd, an employment lawyer at Lewis Silkin, who has worked at Lewis Silkin. . He has also received an increasing number of inquiries about managing neurodiverse employees.
“When someone is disciplined for a behavior, it is associated with neurotic traits such as not understanding boundaries, using inappropriate language, or speaking too frankly…this can pose real challenges for employers,” Burd adds.
One issue that companies are increasingly seeking advice on is remote work, according to Bord. This is particularly acute in banks, where many employees are called back to their desks five days a week. He says those who identify as neurodiverse often want to spend more time working from home.
From a legal standpoint, the issue is complex. Employers are required to provide accommodations if a condition is considered a disability under the Equality Act 2010, which means it must be considered a physical or mental disability that has a long-term negative impact on a person's ability to carry out normal daily activities.
While some conditions, such as HIV, are automatically covered and others, such as voyeurism, are not automatically covered, when it comes to neurodiverse diagnoses the law is less clear. According to Acas, an independent public body that provides free advice on employment rights, being neurodivergent is often considered a disability even if the person does not see themselves as disabled.
The increasing demand for support in this area has given rise to an entire industry of companies that provide services to companies and employees, ranging from medical assessments and training, to strategies related to different ways of working.
For example, Neurobox, founded in 2017, has provided neurodiversity support in the workplace for companies including Rolls-Royce, Samsung and Nationwide. The Cambridge-headquartered company worked with 1,800 companies in 2023, 50 per cent more than the previous year, with demand for its services increasing rapidly.
One common problem, according to Dr. Deborah Leroy, head of consulting and research at Neurobox, is the inappropriate focus companies sometimes place on employees who need a diagnosis.
“Sometimes we find that employees live in this kind of gray area where they don't have a formal diagnosis in that medical way, but they need support,” says Leroy. “It is then up to the employer to decide whether they support that individual based on what is offered to them, or whether they insist on that and say ‘no, I need a diagnostic assessment’.”
Employers may have to overhaul their systems to be able to accommodate employees' changing needs, says Dr. Nancy Doyle, founder and head of research at Genius Inside, which has worked with companies including KPMG and Microsoft to support diverse employees.
“Increasing cases will make the current cost model and neurodiversity service delivery model unreasonable. . . . We need to find a way to make this scalable,” says Doyle. “No matter what neurotype you are, people are always experiencing the same things. . . Organization, time management, planning, prioritization, stress management, communication, focus, and understanding their strengths.
At Microsoft, the most common support requests from neurodiverse employees include job coaches to help with time management, flexible work arrangements, and quiet spaces for working from the office, according to Neil Barnett, director of inclusive employment and accessibility at Microsoft.
KPMG UK introduced the Inclusion ID in 2022 as a means of recording adjustments made to an employee, which the person can share confidentially as needed.
Both Microsoft and KPMG have created recruitment programs to hire neurodivergent employees in specific areas of work in an effort to tap into some of the skills often associated with neurodiverse conditions, such as problem solving and attention to detail.
“When employers properly understand an employee's neurodivergent background, they can consider how best to achieve this for the individual and the workplace, and what support may be required,” says employment lawyer Isaacs. “Too often, the discussion is left too late.”
