Employment Eye – November 2025

Neurodiversity and the Law: building a neuroinclusive workforce

Introduction

One of the largest occupational heath providers in the UK, PAM Group, recently published a data review which looked at reasons for occupational health referrals by employers. The review found that the third biggest reason why employees struggle at work is due to their neurodivergent conditions. The data looked at 135,000 occupational health referrals and it found that one in ten employees needed help to manage neurodivergent conditions in the workplace.

The review states that the increase in referrals to occupational health is likely driven by increased awareness and greater encouragement to seek support. As employees become more aware of neurodiversity, it is important for employers to enhance their understanding, as doing so enables them to provide appropriate support and ensure that neurodivergent individuals are not disadvantaged in the workplace.

What is neurodiversity?

Neurodiversity describes the idea that differences in human neurocognitive function and behaviour are natural and valued aspects of diversity, rather than disorders or deficiencies. It recognises that each person’s neurological makeup is unique and influences how people think, learn and process information. Neurodiversity therefore describes the idea that people experience and interact with the world around them in many different ways.

As noted in the Acas guidance, ‘Understanding neurodiversity - Neurodiversity at work’, using appropriate language when referring to neurodiversity can often make people feel more comfortable, and many neurodivergent people like to use what is known as “identity first language”. While all brains are different, some people with broadly similar ways of thinking, communicating and processing information can have a sense of shared identity and experience even though their strengths and challenges may differ. Identity first language essentially describes who they are by referring to their neurodivergence as their identity. It is therefore very important to avoid phrases like “suffering from”. For example, someone “is autistic” – they do not “have autism” and they do not “suffer from autism”. 

The term neurodivergent is a mainstream term for this large and varied group, many of whom possess multiple (neuro)identities and who are represented in all age, gender, ethnic and cultural groups.  It is an umbrella term and includes:

• ADHD (attention-deficit/hyperactivity disorder)
• Autism 
• Dyscalculia (maths), Dyslexia, Dyspraxia     
• Epilepsy 
• Tourette’s

Someone who does not possess a neurodivergent identity is typically referred to as 'neurotypical' (although in reality this is highly contextual, and there is no one 'normal brain'). 

Are neurodivergent conditions disabilities under the Equality Act 2010?

The primary legislation protecting people from discrimination in the workplace and the wider society is the Equality Act 2010 (EqA). Under the EqA, a person’s neurodivergence may be considered a disability.

The definition of disability – the legal test

Under Section 6(1) of the EqA, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. 

For the purposes of applying this legal test:

• There does not need to have been an actual diagnosis of the condition in order for an individual to establish that they have an “impairment”;
• “Substantial” means that the impairment must be more than minor or trivial; and 
• An impairment will be deemed “long-term” where it has lasted or is likely to last for 12 months or is likely to last for the rest of the individual’s life.

Neurodivergent conditions are likely to be categorised as a ‘mental impairment’ (as opposed to physical) (although this term may be outdated, especially when considering the idea behind the term ‘neurodiversity’ - as set out above). 

The next part of the legal test is whether the condition has a substantial adverse impact on the individual’s ability to carry out normal day to day activities. This part of the test is relatively easy to meet, for example, experiencing difficulties when interacting with others could be enough to allow them to meet the definition.

Finally, individuals are often neurodivergent from birth, so they are likely to have these conditions their whole life, meaning they are likely to satisfy the length of time part of the legal test. 

Neurodivergent individuals/workers are therefore capable of being found to be disabled within the meaning of the EqA, but of course each case will need to assessed on its own individual circumstances. 

Employer obligations under the EqA 2010 

Employers have obligations under the EqA to ensure that neurodivergent employees (which includes job applicants and former employees) do not suffer discrimination in the workplace. 

The primary obligation is to ensure that reasonable adjustments are made where disabled employees are placed at a substantial disadvantage compared to non-disabled employees. This could involve adjusting workplace rules, changing a physical feature of the work premises or providing an auxiliary aid such as speech recognition software or coloured screens. 

The types of adjustments that might be required will vary from case to case, but for neurodivergent employees these could be:

• Adjusting recruitment process to allow candidates to answer shorter questions, remove elements of surprise or any time pressures.
• Provide noise cancelling headphones for those sensitive to noise, or desks away from windows for those sensitive to lights.
• Adjusting communication methods to include a follow up email or providing a transcription of meetings and calls.
• Creating flexible working arrangements which support the employee’s preferred working environment, such as more or less home working and/or earlier/later starts of finishes.

It is equally important that employers do not treat an employee unfavourably because of something arising from their disability. For example, if a disability causes a more direct communication style, taking disciplining action under a workplace values and respect policy could be considered discriminatory. However, if that communication becomes offensive or inappropriate, disciplinary measures may be justified – provided reasonable adjustments have been considered and implemented. Striking the right balance between fostering a respectful, inclusive working environment and meeting the obligations of the EqA takes careful thought, but it is essential.

It also goes without saying that an employer should not treat a neurodivergent employee less favourably than others, nor subject them to harassment or victimisation for raising concerns about treatment they believe stems from their condition.

Practical tips for employers

It is estimated that between 15% and 20% of the UK population may identify as having one or more neurodivergent identities, but workplaces are mostly still designed for neurotypicals, which means organisations are not enabling everybody to perform at their best at work, and are not making full use of a valuable talent pool.  Neuroinclusion is valuable to employers because neurodivergent employees can bring unique skills and strengths over and above other employees. Practical steps an employer can take to create a more inclusive workplace include:

• An employer cannot be liable unless it knew, or should have known, about the employee's disability. However, an employer will be deemed to have knowledge of a neurodiverse disability if it reasonable for them to have known. A proactive employer should engage with any employee it suspects may be neurodiverse, as this will allow the employer to see what support the employee may need, and it may be necessary to refer them to occupational health for an assessment. This will help the employer make the necessary reasonable adjustments.
• An employer should ensure that senior managers and staff receive training on neurodiversity and the support available within the workplace. A neurodiversity policy may be introduced, the policy can  address the employer’s approach to recruitment, as well as workplace and performance adaptations.
• With any new policy or workplace rule, an equality impact assessment should be carried out. This will help identify whether neurodivergent employees may be disadvantaged by any of the provisions contained within it.
• A diverse workforce has many benefits for employers. For example, employees with ADHD may be able to provide heightened focus, whilst an autistic employee may be able to provide strong attention to detail, and dyslexic employees are often able to solve problems through visual thinking skills. However, it is important to remember that each neurodivergent condition is distinct, and assumptions about an individual’s strengths or challenges should be avoided. Even among those with the same neurodivergent identity, there can be significant variation in how traits are expressed and experienced. 

Employers are encouraged to consider:

1. The Acas guidance, which is an informative guide for any employer wanting to strength their inclusivity policies and practices.
2. The Better Hiring Institute report ‘Removing Barriers in Work for Neurodiverse People’ (which has been developed in collaboration with Acas and others). The report highlights some of the employment challenges faced by neurodiverse individuals as well as providing recommendations to improve workplace inclusion. 

Employment law 2025 – keeping you and your organisation up to date

There have been a number of notable developments since September’s edition of Employment Eye - below is a short recap on some of those developments.

• 15 September 2025 – The Employment Rights Bill completed its report stage in the House of Lords just before Parliament’s summer recess in July 2025. During this stage, the Lords passed several unexpected non-government amendments, such as retaining the qualifying period for unfair dismissal claims, but reducing it to 6 months and retaining of the 50% turnout threshold for ballots for industrial action. However, in the House of Commons, the Government rejected all of the Lords’ amendments!
• 30 September 2025 – The government published its response to the Competence and Conduct Standard consultation, together with the final Direction and Policy Statement. The new Standard is said to represent a major step in the professionalisation of the social housing sector. The new framework introduces defined expectations for staff, including mandatory professional qualifications, standards of conduct and ongoing development requirements.
• 23 October 2025 –The government launched a new wave of consultations under its "Make Work Pay" initiative. The consultations relate to: a) the duty of inform workers of the right to join a union; b) trade union right of access; c) enhanced dismissal protections for pregnant women and new mothers; and d) leave for bereavement including pregnancy loss
• 28 October 2025 – The House of Lords met to review the House of Commons’ amendments to the Employment Rights Bill. Rather than accept the Commons' proposals, the Lords stood firm on several amendments (for example, continuing to insist on a 6 month qualifying period for unfair dismissal (rather than a day one right)).
• 4 November 2025 – The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2025 were laid before Parliament. These regulations double the maximum period for Acas Early Conciliation from 6 weeks to 12 weeks. It will apply to all EC notifications submitted on or after 1 December 2025.
• 5 November 2025 – The House of Commons debated the amendments made to the Employment Rights Bill by the House of Lords on 28 October 2025. The Commons rejected the Lords’ amendments relating to unfair dismissal, guaranteed hours and trade union ballot thresholds.
• 14 November 2025 – Rice v Wicked Vision and Barton Turns v Treadwell: In the joined appeals of Rice v Wicked Vision and Barton Turns v Treadwell, the Court of Appeal confirmed that employees may pursue whistleblowing detriment claims where the alleged detriment is dismissal for which the employer can be vicariously liable.
• 17 November 2025 – The Bill returned to the House of Lords, but the Lords held firm on 5 key changes:
  • Unfair dismissal: pressing for a six month qualifying period (rather than a day one right).
  • Guaranteed hours: tighter provisions relating to seasonal work.
  • Guaranteed hours: permitting workers to op-out of guaranteed hours offers.
  • Industrial action: retaining the 50%turnout threshold.
  • Trade Union: retaining opt-in requirements for union political funds. The Bill will now return to the House of Commons.
• 19 November 2025 – the government published another consultation, Make Work Pay: draft code of practice on electronic and workplace balloting for statutory union ballots. The consultation closes on 28 January 2025.
• 24 November 2025 - the Department of Business and Trade advised the Westminster Employment Forum that the consultations on zero hours contracts and unfair dismissal measures in the Employment Rights Bill will be delayed until the Bill receives Royal Assent.

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If you would like further information on any of the topics discussed in this article, please contact a member of the Employment, Pensions and Immigration department who will be happy to help.