Radhika Aggarwal looks at some recent employment tribunal decisions involving neurodiverse employees and considers the impact of these and other issues for employers and their insurers to consider.
The modern multi-generational workforce is constantly evolving with emerging employee needs requiring differing considerations. In a government publication this month, figures showed that for the academic year 2024/2025 over 1.7 million pupils in England have a special educational needs plan. This is an increase of 93,700 (5.6%) pupils since 2024 and is a trend which has continued to rise since 2016.
Why is this relevant?
Well, these children will be part of the future workforce one day, which begs the question of whether the current workplace is designed to support them and are employers ready to adapt their practices to do so?
But the situation may be more immediate than that as it’s not just an increasing number of children who are being diagnosed; adults are increasingly also receiving diagnosis in later in life. This might be because of increased awareness with high profile celebrities such as Greta Thunberg, Simone Biles, Bill Gates to name just a few being open about their neurodiversity; or perhaps because of better diagnosis. Either way, a spotlight is shining on the challenges experienced by those who are neurodiverse.
Neurodiversity, explained in the most basic terms, is a spectrum and encompasses autism, dyslexia, Tourettes and ADHD. This can manifest and present in different ways for example time blindness, different ways of learning or behavioural differences. Anxiety and poor mental health are often co-features for those with neurodiversity.
In employment tribunal claims submitted last year, 102 cited neurodiversity as part of the reasons for the alleged disability discrimination complained of. Also last year, in a landmark ruling a tribunal awarded an eye-watering £4.5 million in compensation to Mrs Wright Turner (who has ADHD and PTSD) in her employment tribunal claim against London Borough of Hammersmith & Fulham Council after she was dismissed for failing her probationary period.
More recently, in the case of Watson v Roke Manor Research, Southampton Employment Tribunal found that Mr Watson, who has ADHD, had been subject to disability discrimination after his manager repeatedly ‘expressed non-verbal frustrations such as sighing and exaggerated exhales’. While the tribunal found that the company had fairly dismissed Mr Watson, it also found that there was a failure to explore potential reasonable adjustments that could have enabled Mr Watson to work more effectively which, in turn, could potentially have improved his performance and lessened his manager’s concerns and frustrations with him.
More pointedly, the tribunal ruled that the manager’s sighs and gestures amounted to unlawful discrimination which were connected to Mr Watsons’s disability. It also accepted that the manager’s behaviour had had an adverse effect on Mr Watson’s mental health and noted that ‘reactions from others verbally or as a gesture, can have a damning effect on self-esteem and anxiety’.
The interplay between neurodiversity and a lack of employer support can lead to significant workplace challenges and potential discrimination claims. Employers must train their managers to be proactive in recognising signs of neurodiversity-related challenges and providing adequate support to neurodiverse employees. Ignorance or disregard of neurodiversity when handling recruitment, poor behaviour, or other HR processes can potentially lead to litigation.
The employment tribunal is not the only forum in which a neurodiversity-based claim can be pursued. With longer periods of limitation, civil litigation claims for psychiatric injury caused by stress at work are also an avenue available to affected employees or former employees and so this is something that employers’ liability insurers also need to be aware of.
Importantly, employers should consider enhancing managers' understanding and awareness of neurodiversity, consider what reasonable adjustments can be made to foster a more inclusive workplace and reduce legal risks, such as for harassment claims due to inappropriate comments and discrimination. To assist, ACAS has also published guidance: https://www.acas.org.uk/neurodiversity-at-work
If you would like to discuss any of the points discussed, please contact employment law expert Radhika Aggarwal.
