Employers’ Responsibilities:

Introduction

As someone who works within an HR function, People or Diversity team, you will be familiar with the Equality Act 2010 and likely the public sector equality duty. Yet understanding exactly how that impacts your organisation and the decisions you make for neurodiversity can be complex.

In this guide, we will explain what the Equality Act 2010  means from a neurodiversity perspective for your organisation, the consequences of not fully considering your duties and what your organisation needs to do to ensure compliance with the duty to make reasonable adjustments and the Equality Act.

What is the Equality Act?

The Equality Act 2010 is legislation that legally protects people in the workplace and wider society from discrimination. Under the Act, disability is a protected characteristic and is defined as, “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities”. Legally, that means a diagnosable neurodiversity is likely to be considered a disability. However, neurodiversity is unique because it is hidden, and in many situations an employee may not be aware they have a disability and as such are protected by the Act.

Contrary to what many employers think, neurodiverse employees are likely to be protected by the Act whether they have disclosed a disability to their employer or not. Case law has repeatedly demonstrated that employers are often deemed, by law, to have knowledge of an employee’s neurodiversity even if they have not disclosed this to their employer. This is called ‘constructive knowledge’, which we will cover in greater detail later.

What are my responsibilities under the Equality Act?

If you are an employer, it is critical to understand how the Equality Act 2010 impacts the way your organisation must approach neurodiversity. To do this, you need to understand these three principles:

1. Definition– How you are defined by the Equality Act
2. Applicable Duties– The duties you are legislated to meet
3. Knowledge– The type, or types, of knowledge you have

How your organisation is defined under the Equality Act 2010

There are three types of organisational definitions, and each has additional duties legislated upon them, as shown in the table below.

Table 1: The three types of organisations.

Use the flowchart below to find out how your organisation is likely to be defined by the Equality Act 2010 and what duties will apply to you.

Applicable duties under the Equality Act

As an employer you are subject to one, two or three duties, based on how you are defined under the Act.

The three duties organisations may need to adhere to are:

• Reasonable Adjustments Duty
• General Duty
• Specific Duty

These duties aim to ensure that people protected under the Equality Act 2010 are not subjected to discrimination in the workplace and wider society. They also enable protected individuals, including neurodiverse employees who may be considered disabled, to carry out their daily activities without being disadvantaged, through the provision of reasonable adjustments and considering their differences and needs when making decisions.

Let’s explore the three types of duties different employers will need to consider in more depth.

Reasonable Adjustments Duty

As stated in the Equality Act, reasonable adjustments must be made by an employer when a policy, practice or criteria puts a neurodiverse person at a substantial disadvantage compared to someone who is not neurodiverse.

The Reasonable Adjustments Duty is the most onerous of the three duties. It establishes a position where an employer can be proven to have discriminated against a neurodiverse individual even if the employer has no knowledge of the employee’s neurodiversity. This ‘indirect’ discrimination is the most common form of discrimination across employment.

Indirect discrimination can occur where the employer either has:

• No knowledge of a neurodiversity
• No knowledge that a policy or rule negatively impacts a neurodiverse individual

Taking steps as an employer to remove the barriers a neurodiverse employee may experience is important in enabling them to carry out their duties. Employers must also consider how policies and rules may impact a neurodiverse individual within their organisation. Employers must ensure that reasonable adjustments are available throughout the employee’s life cycle, from the initial reading of a job description through to the offboarding process.

To optimise compliance to the Reasonable Adjustments Duty, employers should have mechanisms in place to facilitate:

• General awareness of neurodiversity across the workforce
• Manager training on reasonable adjustments for neurodiversity
• Colleague awareness training covering the range of diagnosable neurodiversity’s
• Self-development training for neurodiverse individuals
• HR training to enable neuro-inclusive policies and rules or adaptions to existing policies and rules

Not only is the provision of reasonable adjustments a legal requirement, but they are also a business investment. That’s because, according to the British Dyslexia Association, reasonable adjustments offer returns of at least £20,000 due to increased productivity, higher standards, increased sales and a reduction in staff turnover. In addition to this, contrary to widespread belief, most reasonable adjustments are free or relatively inexpensive to implement.

What are reasonable adjustments under the Equality Act?

When it comes to the Equality Act, reasonable adjustments are recognised as a mechanism for removing the barriers a disabled employee may face in the workplace.

There are three different ways employers can make it easier for disabled employees to access or carry out their tasks at work. From a neurodiversity perspective, they are:

Change the way things are done 

• Implementing a neurodiversity at work policy
• Changing the recruitment process so neurodiverse candidates can still participate and are not at risk of being screened out

Change physical features of the work environment

• Adjusting lighting and ventilation
• Partitioning desks
• Providing light up telephones rather than those that ring
• Implementing signs to help employees navigate the work environment

Provide staff with additional aids or support 

• Providing speech to text software
• Providing equipment to enable employees to complete their work such as ear defenders
• Providing scheduling or time management tools or software

General Duty

Any organisation which is defined as a Public Authority or Public Function is required to comply with the General Duty of the public sector equality duty, a subsection of the Equality Act 2010. 

There are three parts to the General Duty which has been designed to advance inclusion and create a fairer education, employment, and social environment for people with protected characteristics.

When carrying out their functions, Public Authorities must consider:

1. a) Duty A– eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act;
   b) Duty B– advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
   c) Duty C – foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

To comply with the public sector equality duty, organisations must consciously consider the three duties set out above but, ultimately, a court will decide if a Public Authority has done enough to ensure compliance.

Specific Duty

As well as the General Duties, Public Authorities are also subject to the Specific Duty to help them comply with the public sector equality duty.

The Specific Duty has been designed to encourage transparency and Public Authorities must:

• publish information to show their compliance with the Equality Duty, at least annually
• set and publish equality objectives, at least every four years

Please note: Only Public Authorities are subject to this duty

Now you understand how your organisation is defined under the Equality Act 2010 and the duties it needs to follow, let’s explore how this impacts the minimum level of ‘knowledge’ your organisation has.

Neurodiversity and the types of knowledge employers are subject to

Many employers are unaware that the Equality Act 2010 may have already predetermined the type of knowledge they have about an employee’s neurodiversity, even if the employee has not disclosed a neurodiverse diagnosis to their employer and even before they were hired.

An employer needs to be aware of the different types of knowledge when considering protected characteristics. They are:

• Actual
• Constructive
• No knowledge

The minimum level of knowledge your organisation has is based upon:

1. How your organisation is defined under the Act
2. The information your organisation has received from or about the employee

If your organisation is defined as a Public Function or Public Authority, the Equality Act 2010 deems that the minimum level of knowledge your organisation has is constructive.

Many employers incorrectly think that if an employee has not informed them of a neurodiverse diagnosis, then the employer has no liability. However, this is incorrect in almost every situation, and if challenged at tribunal, is likely to increase the penalty an employer will receive. That’s because the employer will be considered to have performed without a reasonable duty of care towards their neurodiverse employees.

All employers should consider themselves to have ‘constructive knowledge’ to comply with the Act and minimise any settlement or award for discrimination claims.

The type or level of knowledge your organisation is deemed to have influences the duties it is subject to. The types of knowledge summarised by case law are outlined below.

Did You Know? Your organisation’s level of knowledge is likely to have already been determined by the Equality Act 2010.

No knowledge

As an employer, you could be considered to have no knowledge about an employee’s neurodiversity if:

• You did not know of the neurodiversity and could not have reasonably been expected to know of it; or
• You did not know of the substantial disadvantage and could not reasonably have been expected to know of it

For an employer to “not reasonably have been expected to know of it”, the employer must have done all that they reasonably could to identify a neurodiversity or the substantial disadvantage it may bring. If the employer can’t demonstrate that they have done all they reasonably could, then they are deemed to have constructive knowledge.

Example:

As an employer, you should be able to demonstrate that you have done everything you can to identify a neurodiversity and identify a substantial disadvantage, such as holding one to one sessions with the employee, reviewing their written, practical or spoken work or monitoring how they responded to stressful situations.
As a rule, it is recommended that an employer assumes they no longer have no knowledge about a possible neurodiversity once an employee has passed probation.

Constructive Knowledge

Constructive knowledge is a function of knowledge that exists in law but not in reality.

For example, an employer may not explicitly know an employee has a neurodiversity, but the law may decide that the employer has been given enough knowledge to assume knowledge of an employee’s neurodiversity, or how a policy or rule creates substantial disadvantage to the neurodiverse employee. That’s because it is possible for the employer to obtain this knowledge by exercising reasonable care to the employee, such as through one to one sessions with their manager and observing their behaviour and performance. As such, this means that the employer would be deemed to have constructive knowledge, even if the employee has not explicitly told the employer they have a neurodiverse diagnosis.

There have been many neurodiversity employment tribunals over the years which have found that an employer has been given sufficient information over the course of employment for the employer to have known about an employee’s neurodiversity, should they have done all they reasonably could.

Employers acquire knowledge about an employee throughout their employment through normal working practices, such as:

• Verbal and written communication
• Performance reviews
• One to one sessions
• Individual work
• Group work

Constructive knowledge means you ought to have known and are assumed to have known.

Actual Knowledge

An employer is deemed to have actual knowledge when they have direct and clear knowledge of an employee’s neurodiversity. It occurs when an employee discloses a neurodiversity to an employer, either informally to their manager, or informally via HR procedures.

Top Tip

If in doubt, assume your organisation has constructive knowledge. It is important that you understand what type of knowledge you are deemed to have about all your employees, including neurodiverse individuals. Most organisations are deemed to have constructive knowledge even if an employee has not disclosed a diagnosis to their employer. The law is likely to assume that an employer will have been given ample opportunity to determine if an employee is neurodiverse through its reasonable care practices.

What is the public sector equality duty?

Every employer in the UK is bound by the Equality Act 2010, and up to about a third of private companies are likely to be bound by a subsection called the public sector equality duty or PSED for short.

Don’t be confused by the title, most of the companies who are subject to the public sector equality duty are private organisations.

The public sector equality duty is a set of additional duties that apply to an employer who performs specific activities that define them as a Public Function or Public Authority. These duties ensure that an organisation’s policies and decisions do not unlawfully discriminate against people who are protected by the Equality Act 2010.

Ignoring the public sector equality duty can be expensive, time-consuming and potentially damaging to your brand. Recent figures show that the average employment tribunal award for discrimination or unfair dismissal was £38,800. So far, the maximum award for a disability discrimination case was £265,700. Most notably, neurodiversity tribunals are up by 33% on 2021, but this risk can be significantly reduced if organisations understand their legal responsibilities and embrace neurodiversity in the workplace.

What if an organisation doesn’t comply with the Equality Act?

Any organisation failing in its duties under the Equality Act is likely to be facing, at some point in the near future, a financial cost by way of either a settlement or a tribunal award. Additionally, the Equality Act is a well-considered Act that, if complied with, is likely to increase inclusion across your organisation, whilst capitalising upon all the commercial benefits greater diversity brings.

Given organisations are often deemed to have constructive knowledge of a neurodiversity, it is paramount that they consider their neurodiverse employees when making decisions or creating policies. If an organisation doesn’t, non-compliance can be costly to both its finances and reputation.

Employers are subject to one, two or three duties depending on how they are defined by the Equality Act 2010. They are:

1. Reasonable Adjustments Duty
2. General Duty
3. Specific Duty

Employers cannot afford to ignore neurodiversity at work. Doing so risks court action if a neurodiverse employee feels they are being discriminated against.

Employment tribunals and the cost of non-compliance

According to research, neurodiversity employment tribunals are on the rise. So much so, that in the year leading up to May 2022, neurodiversity related tribunal claims grew by a third.

Although neurodiversity awareness is improving, research by the law firm Fox found that dyslexia accounted for the most claims.

It is essential that employers understand the law around neurodiversity. Many individuals who are neurodiverse do not consider themselves as disabled but rather feel disabled by their social environment. The law offers the same protection against discrimination to people with invisible differences, as it does to anyone who is physically disabled.

That means invisible differences should be treated with the same respect as visible ones in the workplace to ensure all employees are supported appropriately and have access to reasonable adjustments. Failure to comply with the duties placed upon your organisation can be legally, morally and financially costly.

How much can neurodiversity discrimination cost my organisation?

If neurodiversity is not top of the agenda for your organisation, firstly, why not? Secondly, are you aware of how much neurodiversity related discrimination could cost your business?

Figures published by the UK Government help to demonstrate why organisations simply can’t turn a blind eye with regards to neurodiversity at work. In the year 2019/20, the average level of compensation awarded for disability discrimination was £38,800 with the highest £265,719.

It’s important to note that unlike some employment rights which are subject to maximum award limits, discrimination is uncapped. That means there is no maximum award limit for neurodiversity discrimination.

Understanding your duties to neurodiverse employees is essential to ensure they can perform to the best of their ability at work without feeling disadvantaged.

If your organisation is deemed to be a Public Function or Public Authority and you are found to have failed to meet the Reasonable Adjustment Duty, a judge would look at your compliance to the General Duty and, if a Public Authority, the Specific Duty. If your organisation is found to be not complying with either duty, the judge is likely to apply a multiplier to the penalty you would have received. For example, a penalty of £70,000 may face a multiplier that doubles this to £140,000 because your organisation is seen to not have taken its duties under the Act seriously.

If your organisation is not on top of its neurodiversity at work strategy, it risks not only potentially huge financial penalties, but also failing to protect and support all its highly talented individuals.

Now, you have a greater understanding of your responsibilities as an employer, read on to find out how you can proactively demonstrate your organisation’s compliance and proactively boost neuro-inclusion.

What is a neuro-inclusion strategy?

Now you have a better understanding of what you need to do to ensure compliance with the duty to provide reasonable adjustments Equality Act 2010 and the public sector equality duty, you’re probably wondering how you can ensure neuro-inclusivity.

Your organisation will need a neuro-inclusion strategy to help support neurodiverse individuals throughout their employee lifecycle, from recruitment all the way through to exit. Neurodiversity should be a major consideration in your equality, diversity and inclusion policy. Embracing cognitive differences is a game changer and will help to bring diversity of thought to your business as well as other potential benefits, like increased productivity and high talent retention.

Here, we’ll explain how you can champion neurodiversity in your organisation and create a fully neuro-inclusive environment where different thinking styles and perspectives are the norm.

Designing a neuro-inclusion strategy

Employers can design their neuro-inclusion strategy by using the Equality Act 2010 as a specification and building up from this legislation. This enables employers to demonstrate that they are compliant with the laws and duties they are subject to, as well as use the most comprehensive inclusion studies to continue advancing equality across their workforce.

Reviewing the Equality Act and the public sector equality duty, alongside case law and best practice from thought leading employers in this space; they determine that there are two primary positions employers should take to create a neuro-inclusive working environment. They are:

1. Constructive knowledge – recognising the minimum level of knowledge across your employee base as constructive knowledge
2. Reasonable Adjustment and General Duties – proactively complying with the General Duties and the Reasonable Adjustment Duty of the Equality Act.

If you are a Public Authority, you must also comply with the Specific Duties of the Act, and if you are a large employer or a publicly traded organisation, you may choose to also comply with the Specific Duties.

How to enable neuro-inclusive or neurodiversity reasonable adjustments

If your organisation has actual or constructive knowledge of a neurodiverse employee, it has a duty to implement, as stated by the Equality Act, reasonable adjustments to prevent the individual from facing unreasonable challenges or direct discrimination at work.

Although most employers, when surveyed, take this requirement seriously, few have robust mechanisms to proactively address this across their organisation. Instead, they have an ad-hoc and reactive approach when actual knowledge is obtained, but limited solutions to address constructive knowledge.

How can you evaluate your organisation’s current situation?

The following questions can help determine whether your organisation is compliant with the Reasonable Adjustments Duty:

• Are managers able to access neurodiversity awareness training and, are they provided with guidance about how to spot where they may have constructive knowledge?
• If a manager learns that a person reporting to them has disclosed a neurodiversity, are they able to access training about; the disclosed neurodiversity, correct language and terminology, and most importantly, suitable reasonable adjustments to discuss with the individual? And can they do this within a reasonable timeframe?
• Is the individual provided with training about how their neurodiversity is likely to impact them at work and the adjustments they can independently deploy to remove barriers and enable an improved working environment? And can they access this without the need to disclose, or is disclosure inadvertently mandated through inflexible policies or rules to access support?
• If the individual has agreed to share this disclosure with colleagues, can their colleagues access training about; the disclosed neurodiversity, correct use of language, benefits that come with this neurodiversity and the accommodations colleagues can make to support an individual with this neurodiversity?
• Can your HR teams access proven information, advice and guidance about the practices and frameworks that have already been implemented by neuro-inclusive organisations? Can they also explore the successful deployment of these across your organisation?

If your organisation is unable to answer positively to each of the points above, it may not be compliant with the Equality Act and Reasonable Adjustment Duty and, if an employee commences a claim, you are likely to face an increased tribunal award against you.

Remember, neurodiversity claims against employers are uncapped. Their awards or settlements are typically between 50% and 150% of the employee’s salary. Based on the average UK salary in some industries, this could prove to be very costly. But it doesn’t have to be this way.

How can organisations avoid indirect discrimination when they have no knowledge?

To avoid indirect discrimination organisations should explore how they can achieve a broad approach to neuro-inclusion, and this usually involves programmes led by HR or People teams. These programmes often address needs throughout the workforce and are deployed across the organisation, enhancing inclusion for all employees. They may involve employees themselves, such as a Neurodiversity Employee Resource Group (ERG), or they may be HR led programmes, like establishing neuro-inclusive workplace passports.

You can check your organisation’s ability to avoid indirect neurodiversity discrimination by answering the following questions:

• Does your HR or People team have processes in place to keep them up to date with neuro-inclusive initiatives?
• Are you able to learn from other organisations about best practices in implementing and operating neuro-inclusive initiatives?
• Do you provide access to a cognitive mapping solution that enables employees to understand their own processing bias or the cognitive impact of their neurodiversity?
• Does your organisation have a roadmap of initiatives that it expects to deploy over the coming years to continually develop its position as a neuro-inclusive employer?
• Does your organisation capitalise on celebration days, such as World Autism Awareness Day, to promote awareness, training, and upskilling in relation to neurodiversity?
• Are you able to accurately capture the prevalence of neurodiversity across your organisation and do you share this data internally so that neurodiverse employees can see they are not alone amongst their peers?

Again, if your organisation is unable to answer positively to each of the points above, it may discover that there are situations where indirect discrimination is occurring. Consequently, limiting the opportunities your workforce has available to capitalise on diversity of thought.

Developing proactive steps to address indirect discrimination is important because it fosters a culture of neuro-inclusion across your organisation and will have a significant impact on staff retention and your employer brand.

The benefits of neuro-inclusion

Implementing a neuro-inclusion policy doesn’t just benefit your organisation’s legal position, it has numerous other benefits, too.  Many of the pioneering companies who were some of the first to implement neuro-inclusivity, have reported that neurodiverse employees bring a range of advantages to the workplace. They include:

• Some neurodiverse individuals “have a greater than usual capacity for processing” information, which is highly desirable in certain sectors like IT, technology and creative industries.
• Greater attention to detail because some neurodiversity traits enable greater focus on long, complex tasks.
• JPMorgan Chase has reported that individuals enrolled on their Autism at Work initiative are less likely to make mistakes and, when compared to their neurotypical employees, were between 90% and 140% more productive.
• The diversity of thought neurodiverse employees possess boosts creativity and innovation.
• Higher than average retention rates when they feel supported and included at work.

The last point is critical, especially as CIPD report that 40% of employers are struggling to fill advertised positions and Deloitte research has found that 39% of employees would leave their current employer for a more inclusive one.

Recruiting new talent is expensive. Oxford Economics and Unum report that it costs businesses more than £30,000 to replace a member of staff once they leave an organisation. With The Great Resignation now in full swing and an uncertain economic future ahead, employers must find a way to retain their talent.

In the US, the four largest Autism Hiring Programmes (SAP, Microsoft, JPMorgan Chase and EY) all report higher than average retention rates in their industries (over 90%). JPMorgan Chase has reported an impressive 99% staff retention rate within their programme. Overall, this demonstrates that nurturing neurodiverse talent can pay dividends for everyone within an organisation and helps to plug a growing skills gap. The moral of the story is, if you want to retain your staff, your organisation must be neuro-inclusive.

Neurodiverse candidates are as talented as neurotypical employees, and they view the world around them differently. With the right environment, neurodiverse employees can thrive within the workplace and will allow your organisation to unleash its real potential.

In the workplace, approximately 77% of employees choose not to disclose being disabled to their employer, but at Cognassist, that’s something we want to change. Neurodiversity is something all businesses should champion and everyone, including leaders, managers, and employees, should embrace. It is our mission to help organisations, like yours, ensure it is meeting its responsibilities and providing a neuro-inclusive culture where everyone feels empowered to discuss their differences and have an open conversation.