Anna Denton-Jones from Refreshing Law Limited opened the talks introducing our topic for the last HR Insights session of 2019: Neurodiversity in the Workplace. Her presentation covers the need for reasonable adjustments and appropriate training to overcome stigmas & cliches about neurominorities. She also provided real examples on what employment law says on the topic.

1. Neurodiversity in the workplace
Anna Denton-Jones
November 19th 2019

2. navigating employment law
ACAS
• ‘Refers to the different ways the brain can
work and interpret information. It highlights
that people naturally think about things
differently. We have different interests and
motivations and are naturally better at some
things and poorer at others’

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Neuroscientists
• ‘We need to admit that there is no standard
brain’.
– Armstrong

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• ‘Neurodiversity may be every bit as crucial for
the human race as biodiversity is for life in
general. Who can say what sort of wiring will
be the best in any given moment?’
– Blume

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Gardiner’s MI theory
• ‘We may be better off thinking of each of us as
having multiple intelligences: visual-spatial,
interpersonal, logical, musical, kinesthetic’.

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Cliches
• Great with computers
• Clumsy
• Odd at times
• Swears a lot
• Can’t spell
• Likes her routine
• Hopeless in a social setting

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The workplace
• The common scenario
• Diagnosis later in life very common

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Stephen Shore - Author
• “if you’ve met one person with autism, you’ve
met one person with autism”
• Rule 1: No assumptions

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Let’s use the right language
• Neurodivergent/Neurodivergence
• Neurodiverse
• Neurominority
• Neurotypical

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One area where you do have a
diverse workforce already
• 1:7 people are neurodivergent
• 15% of people
• ”Neurodivergence is fairly common, so most
workplaces are already neurodiverse” ACAS

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Benefits of neurodiversity
• ‘It’s simple. Microsoft is stronger when we
expand opportunity and we have a diverse
workforce that represents our customers.
People with autism bring strengths that we
need…each individual is different, some have
an amazing ability to retain information, think
at a level of detail and depth or excel in math
or code. It’s a talent pool that we want to
continue….’ VP Mary Ellen Smith - Microsoft

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Benefits
• Productivity: if people feel sale and authentic
in work their output increases
• Retention of skills and reduced turnover
• Reflect society/customers
• Avoid costs of claims

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Discussion
• What might the barriers be in the workplace
for neurominorities?

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ACAS Guide
• Autism
• Asperger’s Syndrome
• Attention Deficit Hyperactivity Disorder
• Dyslexia
• Dyspraxia
• Dyscalculia
• Dysgraphia
• Tourette’s syndrome

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Do not make assumptions
• Eg:- Diagnostic and Statistical Manual of
Mental Disorders no longer uses the terms
‘Asperger’s Syndrome’ and ‘high’ and ‘low’
functioning

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Definition of a “disability”?
“a physical or mental impairment
which has a substantial or long-
term adverse effect on the person’s
ability to carry out normal day to
day activities”

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2011 Guidance on Definition of a
Disability
• B10 ”In some cases people have coping or
avoidance strategies which cease to work in
certain circumstances….it is possible that a
person’s ability to manage the effects of an
impairment will break down so that effects
will sometimes occur. This possibility must be
taken into account when assessing the effects”

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NAS Website:
• It’s quite common for people to have gone
through life without an autism diagnosis,
feeling somehow that they don’t quite fit in.
• If the employee didn’t know themselves how
could you be expected to know?

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Donlien v Liberata UK Limited
• Ought you to have known?
• Burden will be on the employer to show it was
unreasonable for it to have the required
knowledge

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Duty to make reasonable
adjustments
Where a provision, criteria or practice or a physical
feature of the premises places a disabled person at a
substantial disadvantage in comparison with a non-
disabled person, the employer is required to make
reasonable adjustments to remove that substantial
disadvantage. The employer needs to know or be
reasonably expected to know about the disability
before this duty kicks in.

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Recruitment Testing
• BT v Meier 2019
– Scored 29 out of 180
– Court of Appeal finds reasonable adjustment:
• Not test at all
• Ignore score

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Discrimination arising from
a disability; section 15 Equality
Act 2010
A person discriminates against a disabled person if they
treat the disabled person unfavourably because of
something arising in consequence of the disability and
the treatment cannot be shown to be a proportionate
means of achieving a legitimate aim.

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City of York Council v Grosset
• Lord Justice Sales
– If an employer does know that there is a disability,
he would be wise to look into the matter more
carefully before taking unfavourable action.
– Ie:- you are expected to understand the
consequences of the condition

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Undiagnosed issues
• Illustrate to OH the issues you are
experiencing in the workplace and seek their
advice:
– Pattern of issues
– Lack of clarity about whether there is an
underlying condition
– Lack of clarity therefore about what support
needed

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When a condition is disclosed
• Avoid making assumptions
• Get expert advice
• Confidentiality
• Develop a Plan
 Encourage dialogue
 Regular reviews
 Make adjustments
• Training for managers in how to interact?

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Discussion
• What things can we do in our organisations
to be more neurodivergent friendly?

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Case study
• Nigel – post on social media of a selfie with his
face, your logo in the background and a screen
showing porn.
• Nigel is autistic.
• He says he was encouraged to do it by his
colleagues.
• What steps should we be taking?

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Case study
• Allen has to record certain information as part
of a set manufacturing process
• Quality picked up an issue so investigated
• When challenged Allen panicked about
mistake and shredded paperwork, denied
seeing it
• CCTV recorded act
• He’s been disciplined
• He raises Asperger’s on appeal

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Sources of further information
• CIPD ‘Neurodiversity at Work’ 2018
• Autism.org.uk
• Ambitiousaboutautism.org.uk
• ADHD Foundation
• British Dyslexia Association
• Dyspraxia Foundation
• Tourettes Action

30. Contact us:
adenton@refreshinglawltd.co.uk
Phone 02920 533393 or 077977 545480
www.refreshinglawltd.co.uk