Neurodiversity, the law and the workplace

October 24, 2022

"If an employee identifies as having a disability, they are provided with certain rights and protections under the Law."

What is neurodiversity?

Neurodiversity is a broad term for the infinite number of ways the human brain can operate, leading to diverse ways of thinking. Neurodivergent people include autistic people; people with attention deficit hyperactivity disorder (ADHD), dyslexia, dyspraxia and other mental health conditions; and people with learning disabilities. Research suggests that half of the workforce is neurodivergent.

Every person is different, taking a labelling approach, where certain employees with dyslexia need ‘X’ support and employees with Autism need ‘Y’ support is not the most effective way of approaching matters.

Understanding neurodiversity can help employers make better decisions and get the most out of their team.

Neurodiversity and the law

One of the biggest obstacles for employers is that some employees do not feel comfortable disclosing their neurodiverse condition in the workplace, or they may be undiagnosed. When employers are not aware that someone is neurodiverse, they can fail to support that employee.

It is important for employers to understand that neurodiversity can qualify as a disability under the Discrimination (Jersey) Law 2013 (as amended) (the “Law”). However, not all neurodivergent employees will consider themselves to have a disability. The legal definition of ‘disability’ under the Law means that neurodivergent workers are likely to meet the criteria.

Under the Law, someone is deemed to have a ‘disability’ if they have one or more long-term physical, mental, intellectual or sensory impairments which can adversely affect their ability to engage or participate in any activity, in respect of which an act of discrimination is prohibited under the Law.

If an employee identifies as having a disability, they are provided with certain rights and protections under the Law. Employers must make reasonable adjustments to allow them to perform their best work and protect them from discrimination, harassment and victimisation.

Reasonable adjustments

Many reasonable adjustments may be required to help neurodivergent workers perform their best. Typically this may include things related to being able to concentrate and general attentiveness. For example, allowing the worker to take shorter breaks throughout the day or providing them with a space free from distraction. Reasonable adjustments for neurodivergent workers should be assessed on a case by case basis.

Below are a few examples of what can be done to support neurodiverse employees:

1 – Promote Accessibility
To support neurodivergent employees, first speak with those individuals and ask what they would find helpful. Everyone has unique needs, and it is important to tailor the working environment to each individual.

Some examples would be providing physical aids (blue lights, overlays), building spaces for those who have spatial sensitivities, offering noise-cancelling headphones to those with sensory sensitivities.

2 – Raise Awareness
As it stands, the level of awareness and understanding about neurodiversity is still really low in most workplaces. Employers should consider delivering neurodiversity awareness training to all employees.

3 –  Reconsider Hiring Practices

  • Consider building a diverse and inclusive set of hiring practices.
  • Some ideas for neurodiverse hiring practices include:
  • Writing inclusive job descriptions
  • Using diverse hiring panels to avoid unconscious bias
  • Hiring for potential
  • Sending reminders for meetings and interviews

4 – Give Time & Options
Allow for more time to digest and record information. Allow for work to be done in a different way; let people draw, write or record if it helps them.

5 – Recognise & Embrace Differences
Everyone is different, and if you have the right policies and procedures in place, this can promote flexibility when responding to individual needs. When employers work with employees to build out solutions, they are significantly more likely to be successful.

Find out more about our Employment Law services here.

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