Reasonable adjustments, Equality Act and discrimination

If you work within an HR, People or Diversity, Equality and Inclusion (DEI) team, you will be familiar with the Equality Act 2010 and likely the Public Sector Equality Duty.

Yet, understanding how that impacts your whole organisation and the decisions needed around neuro-inclusion can be complex.

In this guide, we will explain what the Equality Act 2010 means for your organisation from a neurodiversity perspective, the consequences of not fully considering your duties or not giving neuro-inclusion the due diligence it deserves. We will also outline what your organisation needs to do to ensure compliance with your duty to make reasonable adjustments based on the Equality Act 2010.

What is the Equality Act 2010?

The Equality Act 2010 provides legal protection for people’s protected characteristics under UK law. This legislation applies at work, in education and across areas of broader society.

There are nine protected characteristics in total:

• age
• gender reassignment
• being married or in a civil partnership
• being pregnant or on maternity leave
• disability
• race including colour, nationality, ethnic or national origin
• religion or belief
• sex
• sexual orientation

Under the Act, disability is defined as “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal day-to-day activities.”

Legally, diagnosed neurological differences are considered a disability; However, we want to acknowledge that the legal language does not reflect inclusive best practices. Words like “impairment” create an overly negative perception of people’s natural differences when people can also experience strengths and increased performance in specific areas.

Medicalised language can often reduce or stigmatise people’s experiences, and neurodiversity is a social movement responding to such viewpoints. Someone who experiences neurological differences but does not consider themselves disabled is still protected by law, which we will discuss further in this guide.

Neurodiversity at work is unique because it can be hidden and more challenging to identify.

In many situations, an employee may not have a formal diagnosis but experiences neurological differences, and in this case, people are still protected by the Act. The Act also protects neuro-minorities whether they have disclosed their diagnosed neurological differences to their employer or not. This advice may be contrary to what many employers think.

However, case law has repeatedly demonstrated that employment tribunals often deem employers could have gained reasonable knowledge of an employee’s neurological differences, even if the employee had not disclosed this to the employer. This is called ‘constructive knowledge’, which we will cover further within this guide.

What are my responsibilities under the Equality Act?

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

1. Definition– How your organisation is defined by the Equality Act 2010
2. Applicable Duties– The duties you are legislated to enact
3. Knowledge– The type, or types, of knowledge you have or may be considered to have by an Employment Tribunal

How your organisation is defined under the Equality Act 2010

Three organisational definitions exist, each with additional duties legislated upon them, as shown in the table below.

Table 1: The three types of organisations.

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

Applicable duties under the Equality Act

As an employer, you can be subject to one, two or three duties (as shown above) 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 broader society. They also enable protected individuals, including neuro-minorities, to carry out their daily activities without being significantly disadvantaged, through the provision of reasonable adjustments and by considering their differences and needs when making decisions.

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

Reasonable Adjustments Duty

As stated in the Equality Act 2010, an employer must make reasonable adjustments when a policy, practice or criteria puts a neuro-minority individual at a substantial disadvantage compared to someone who is not a neuro-minority.

The Reasonable Adjustments Duty is the most broadly imposed and legally disputed of the three duties. It establishes a position where an employer can be proven to have discriminated against a neuro-minority employee even if the employer claims to have no knowledge of the employee’s neurological differences. 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 neuro-minority employee
• No knowledge that a policy or rule negatively impacts neuro-minorities

Employers must take proactive steps to remove barriers experienced by neuro-minorities to enable them to carry out their daily duties. Employers must also consider how policies and rules may impact different neuro-minorities within their organisation. Employers must ensure that reasonable adjustments are available throughout the employee lifecycle, from the initial reading of a job description to the offboarding process.

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

• General awareness of neurodiversity across the workforce
• Manager training on reasonable adjustments for neuro-minorities
• Colleague awareness training of understanding various neurological differences
• Support and targeted self-development training for neuro-minorities in the workplace
• HR training to enable neuro-inclusive policies and ongoing adaptions to existing policies and rules

Not only is the provision of reasonable adjustments a legal requirement, but they are also a business investment. According to the British Dyslexia Association, reasonable adjustments offer at least £20,000 in returns due to increased productivity, higher standards, increased sales and reduced staff turnover. Contrary to widespread belief, most reasonable adjustments are free or relatively inexpensive.

What are reasonable adjustments under the Equality Act?

Regarding employment and the Equality Act 2010, reasonable adjustments are recognised as a mechanism for removing the barriers a disabled employee may face.

It is up to each organisation to decide what is considered reasonable based on the impact it would have on the individual, the practicality of making the adjustment and the cost-effectiveness – suitable alternatives must be discussed and arranged if certain adjustments are not feasible.

There are three ways employers can build comfortable working conditions and inclusivity for disabled employees to access or carry out their tasks at work. From a neurodiversity perspective, they are:

Change the way things are done 

• Implement neuro-inclusion 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
• Implementing signs to help employees navigate the work environment

Provide staff with additional aids or support 

• Providing speech-to-text software
• Providing physical equipment to enable employees to complete their work, such as noise-cancelling headphones or standing desks
• Providing scheduling or time management tools or software

General Duty

Any organisation defined as a Public Authority or Public Function must 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, 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 the following:

Duty A – Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act;

Duty B – Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

Duty C – Foster good relations between persons who share a relevant protected characteristic and those who do not.

Organisations must consciously consider the three duties above to comply with the Public Sector Equality Duty. Ultimately, a court will decide if a Public Authority or Public Function has done enough to ensure compliance.

Specific Duty

As well as the General Duty, 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 needs before they were hired, even if the employee has not disclosed a diagnosis to their employer.

An employer must know 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 your organisation’s minimum level of knowledge is constructive.

Many employers incorrectly think that if an employee has not informed them of a diagnosis, then the employer has no liability. However, this is incorrect in almost every situation, and if challenged at a tribunal, it 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 employees with neurological differences.

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 an organisation is deemed to have will influence 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 neuro-differences if:

• You did not know of the neuro-difference 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 they reasonably could to identify an employee’s neurological differences and whether they are at a substantial disadvantage. If the employer can’t demonstrate that they have done all they reasonably could, 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 an employee’s neurological differences and whether they are at a substantial disadvantage, such as holding one-to-one sessions with the employee, reviewing their writing, practical or spoken performance or monitoring how they responded to stressful situations.

As a rule, an employer can assume they no longer have “no knowledge” about an employee’s neurological differences once they have passed probation.

Constructive Knowledge

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

For example, an employer may not explicitly know that an employee experiences neurological differences. However, a tribunal may decide that the employer has been given enough information to assume knowledge of their different needs and how a policy or rule might create a substantial disadvantage for that employee. The employer can obtain this knowledge by exercising reasonable care with the employee 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 diagnosis.

There have been many neurodiversity related employment tribunals over the years which have found that an employer has been given sufficient information throughout employment for them to have known about an employee’s neurological differences if they had done all they reasonably could to assess the situation.

Employers acquire knowledge about an employee throughout their employment through everyday 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 by law.

Actual Knowledge

An employer is deemed to have actual knowledge when they have direct and clear knowledge of an employee’s neurological differences. It occurs when an employee discloses a diagnosis or talks openly about specific challenges to an employer, either informally to their manager or formally through HR procedures.

Top Tip

If in doubt, assume your organisation has constructive knowledge. You must understand what type of knowledge you are deemed to have about all your employees, including individuals with neuro-differences. Most organisations are considered to have constructive knowledge even if an employee has not disclosed a diagnosis to their employer. The application of the law likely assumes that an employer will have been given ample opportunity to determine if an employee experiences neurological differences through 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 name. Most of the companies that 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 protected by the Equality Act 2010.

Ignoring the Public Sector Equality Duty can be expensive, time-consuming and potentially damaging to your company culture. 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 related tribunals were up by 33% in 2021 from 2020, 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 will likely face, 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, will likely increase inclusion across your organisation whilst capitalising upon all the benefits greater diversity brings.

Given organisations are often deemed to have constructive knowledge of neuro-different individuals, it is paramount that they consider these employees when making decisions or creating policies, whether they know of any in the company or not. If an organisation doesn’t take proactive steps, non-compliance can be costly to 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

We outlined these duties earlier in this guide.

Employers cannot afford to ignore neurodiversity at work. Doing so risks court action if a neuro-different employee feels discriminated against at your organisation.

Employment tribunals and the cost of non-compliance

According to research, neurodiversity employment tribunals are on the rise.

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

Employers must understand the law around neurodiversity. Many individuals who experience neurological differences do not consider themselves disabled but rather feel disabled by the environment and context around them. 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 on the agenda for your organisational DEI, why not?

Only 7% of global organisations have a neurodiversity plan in place. There is a massive gap in our understanding and workplace support.

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 can’t look the other way about neurodiversity at work. From 2019 to 2020, the average compensation awarded for disability discrimination was £38,800, with the highest being £265,719.

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

Understanding your duties to neuro-different employees, protected under the law, is essential to ensure they can perform at their best without feeling disadvantaged.

If your organisation is deemed a Public Function or Public Authority and you have failed to meet the Reasonable Adjustment Duty, a judge would also look at your compliance with the General Duty and, if you are a Public Authority, the Specific Duty. If your organisation is not complying with either duty, the judge will likely 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 not to have taken its duties under the Act seriously.

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

Now, we want to concentrate on proactively demonstrating your organisation’s compliance and boosting neuro-inclusion.

What is a neuro-inclusion strategy?

Now you understand what you must do to ensure compliance with the duty to provide reasonable adjustments and the public sector equality duty within the Equality Act 2010. You’re probably wondering how you can ensure neuro-inclusivity.

Your organisation will need a neuro-inclusion strategy to help support neuro-different employees throughout their workplace lifecycle, from recruitment all the way through to exit – hopefully not too soon!

Neurodiversity should be a significant consideration in your equality, diversity and inclusion policy. Embracing neurological differences and cognitive diversity is a game changer and will help to bring diverse thinkers to your business, which supports increased productivity and high talent retention.

A neuro-inclusion strategy is a statement of intent around supporting neurodiversity and helps employers to identify gaps where they need to focus their neuro-inclusion efforts.

For example, are your job adverts accessible, with clear expectations of job requirements and desirable experience stated separately? Do you clearly state that candidates can request reasonable adjustments in their interviews? Do you avoid unnecessary jargon?

The first impression can often make all the difference for prospective employees, so clearly state what your culture represents and have your key DEI policy available online.

There’s plenty that employers can do to attract diverse thinkers and design a workplace with neurodiversity in mind.

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 focus enables employers to demonstrate that they are compliant with the laws and duties they are subject to and use the most comprehensive inclusion studies to continue advancing equality across their workforce.

Considering everything in this guide (the Equality Act 2010, the PSED, case law and best practices from thought-leading employers), 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 2010.

If you are a Public Authority, you must also comply with the Specific Duties of the Act. If you are a large employer or a publicly traded organisation, you may choose to comply with the Specific Duties. However, you must still comply with the reasonable adjustments duty.

We know legislation might not be the most exciting topic, but it provides an unbeatable foundation for delivering impactful neuro-inclusion.

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, DEI 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 initiatives, 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 to keep them up to date with neuro-inclusive initiatives?
• Can you learn from other organisations about best practices in implementing and operating neuro-inclusive initiatives?
• Do you think about cognitive diversity and enable all employees to understand their own processing bias or cognitive differences, whether they’re neuro-different or not?
• Does your organisation have a roadmap of initiatives to deploy over the coming years to 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 around neurodiversity?
• Can you accurately capture the prevalence of neurodiversity across your organisation? Do you share this data internally so employees who experience neurodifferneces can see they are not alone amongst their peers?

Again, if your organisation cannot answer positively to each of the points above, it may discover that there are situations where indirect discrimination is occurring and people do not feel a strong sense of belonging.

Developing proactive steps to address indirect discrimination fosters a culture of neuro-inclusion across your organisation. It positively impacts one of the most underrepresented yet highly performing groups in the workplace. As James Mahoney, Executive Director and Head of the Autism at Work program, said, “It’s not charity, it’s a talent play.”

How to enable neuro-inclusive or neurodiversity reasonable adjustments

If your organisation has actual or constructive knowledge of an employee’s neurodifferences, you have a duty to implement 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 and take proactive steps.

How can you evaluate your organisation’s current compliance with the Equality Act 2010?

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 given guidance about how to spot where they may have constructive knowledge?
• If a manager learns that a person reporting to them has disclosed a diagnosis, are they able to access training about supporting neurological differences, 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 neurodifferences are likely to impact them at work, and the adjustments they can request or do themselves to remove barriers and enable an improved working environment? And can they access this support 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 diagnosis, correct use of language, benefits that come with their neurodifferences and the accommodations they can make to support the individual?
• 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 the entire organisation, from employees to leaders?

If your organisation is unable to answer positively to each of the points above, it may not be compliant with the Equality Act 2010 and the Reasonable Adjustment Duty. 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.

For smaller organisations, finances might be more of a concern, but every organisation needs to be concerned about building equality, diversity and inclusion. Neurodiversity is a growing conversation, and as such more people are seeking diagnosis and understanding their neuro-identities. Everyone wants to feel like they can be themselves at work and fully contribute.

Your culture and organisational efforts play a huge part and it doesn’t have to end in awful legal disputes and people feeling let down.

If you’re worried about you and your employees paying the price further down the road, take the time to invest in neuro-inclusion now.

The benefits of neuro-inclusion

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

• Some neuro-different individuals “have a greater than usual capacity for processing” information, which is highly desirable in specific sectors like IT, technology and creative industries.
• Greater attention to detail because some neurodifferences 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. They were between 90% and 140% more productive than their non-autistic peers.
• The diversity of thought that comes naturally to those of us with neuro-differences can boost creativity and innovation.
• Higher than average retention rates when people feel supported and included at work.

The last point is critical, especially as CIPD reports that 40% of employers struggle to fill advertised positions. 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 staff member once they leave an organisation. 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 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: to retain your staff, your organisation must be neuro-inclusive.

Those who are neurologically different are as talented as their non-neuro-different peers, and they view the world around them differently. With the right environment, all employees can thrive within the workplace, allowing your organisation to unleash its real potential.

In the workplace, approximately 77% of employees choose not to disclose their neuro-differences or disability to their employer, but at Cognassist, we want to change that.

Neurodiversity is something all businesses should champion, and everyone, including leaders, managers, and employees, should embrace it. Our mission is to help organisations like yours meet key responsibilities and provide neuro-inclusive tools to build a culture where everyone feels empowered to discuss their differences and have an open conversation.

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