Is your organisation fully compliant with legal requirements around neurodiversity? Championing a neuro-inclusive workplace is an increasingly important part of a diverse workforce here in NI. With the NI Civil Service leading the charge with the release of their “Neurodiversity: NICS Line Manager’s Toolkit”, neurodiversity is never far from the HR headlines.

In this edition of Employment Law at 11 regulars Christine Quinn of Legal Island and Seamus McGranaghan of O’Reilly Stewart unpack the legal obligations and best practices for supporting neurodivergent employees.

Seamus explores:

• What are the legal rights of neurodivergent employees under NI employment law?
• How can employers meet their duty to provide reasonable adjustments?
• What are the legal risks of failing to accommodate neurodiversity in the workplace?

 View the Neurodiversity Toolkit Slides HERE

Recording:

Transcript:

Christine: Good morning, everyone, and welcome to Employment Law at 11, sponsored by MCS Group. My name is Christine Quinn. I'm a Knowledge Partner here at Legal-Island, and I'm joined as usual by Seamus McGranaghan of O'Reilly Stewart Solicitors. You're all very welcome, everyone.

So, what are we talking about today? We're talking about neurodiversity and the law. This is a topic that we were asked to address by one of our regular listeners, so thank you very much for sending that suggestion in. And if you do have other suggestions, please let us know. We're always happy to hear from you.

So today we're asking the question "Is your organisation fully compliant with the legal requirements around neurodiversity?" Championing a neuro-inclusive workplace is an increasingly important part of a diverse workforce here in Northern Ireland. The Northern Ireland Civil Service are leading the charge with the release of their Neurodiversity: NICS Line Manager's Toolkit. So, neurodiversity is never far from the HR headlines. We attached that toolkit to the handout section of the webinar should you want to have a look at that. 

Today, Seamus and I are going to explore the legal rights of neurodivergent employees under Northern Irish employment law. Then we're going to move on to how employers can meet their duty to provide reasonable adjustments. And then we'll look at the legal risks of failing to accommodate neurodiversity in the workplace.

Thanks, as always, to our sponsors, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

So as usual, we're going to start you off with some poll questions. Gosia is in the background there. She's just going to get the first poll up for us, get a bit of information on how you're dealing with neurodiversity in your workplace.

I'm not seeing the poll. It might have been something I clicked. We may well be having some technical difficulties there with the polls. I think we'll move on, and we'll get into the webinar proper then. Seamus, you're still there and can still hear me? You've disappeared from my screen. 

Seamus: Yes, I'm still here. 

Christine: You're still there. Brilliant. Thank you very much. A bit of a short webinar. So, let's get started. We'll put a pin in the polls for now. We'll maybe come back to them at the end.

So please do drop your questions in as we go, and I'll put them to Seamus as and when appropriate.

Seamus, do you want to kick us off? What is neurodiversity? Why should we care about it? 

Seamus: Well, I think the position has been, in and around neurodiversity, that there has been . . . certainly over the last number of years, we've had a greater understanding of the conditions around neurodiversity, and in particular, people receiving diagnoses in relation to their neurodiverse issues that have arisen.

And sort of the best description that I've heard of it is that it's a term used to describe the way in which simply people's brains work. All of our brains function and work differently. And specifically, neurodiversity refers to diversity around brain and cognition and issues like that.

I suppose the general sort of understanding of it is that neurodivergent people experience and interact and interpret the world in a different way. There's absolutely nothing wrong with that. And as we'll see, that's very helpful and provides a lot of assistance in the workplace, and it's not something that should be viewed negatively.

A lot of the times, whenever you're giving advice to calls that you get through, it's almost like the word neurodivergent or Asperger's or ADHD is whispered down the phone at you, that there's some sort of concern that somebody will overhear it.

And these issues that arise, it's easy to see. I think that, ultimately, the suggestion is that around one in five people are neurodivergent. You hear a lot of people say, "I'm sure everybody is on the spectrum", type of scenario.

When you have those sorts of figures of one in five, the realistic side of it is that whether you're a small, medium, or a large employer, you're going to have neurodivergent staff within your workplace. And sometimes with those individuals, those employees, issues arise during the employment that are identified generally through line management or through colleagues, and reported through to HR as a problem, as an issue.

It's the good, and it's the smart, and it's the caring HR manager that can look to spot these issues and seek to get resolutions for any issues that have arisen.

And sometimes, as well, it's the individual, it's the employee coming to HR and saying, "Listen, I'm struggling here with X, Y, and Z. Can we look to get a solution in relation to that?" So, the reality is I think that we all are going to have neurodivergent people that we work with.

The various conditions that are defined and that are talked about, definitely we have autism, and we have ASD, ADHD, dyslexia, dyspraxia. Now, that's not an exhaustive list in any way whatsoever, but it gives a flavour.

And the toolkit that you mentioned from the North Ireland Civil Service, really, is about the best advice that I could see and guidance that I could see out there at the minute. The Labour Relations Agency have an excellent video as a learning tool on their website, which is very good, but this is a very recent document in respect of the toolkit.

It's foreworded by the new minister there in the North Ireland Civil Service, and it gives some great, very succinct, straightforward explanations of these conditions, these diagnoses, much better than anything that you or I could do in terms of medical conditions. But it's a great way of setting it out. And I think the toolkit is very positive in relation to you can see how it's there to help and assist employees and managers.

And just as we were chatting before we came on, it's that aspect of that joined-up process within organisations, the culture of the organisation, and any of the D&I documentation that we read, whether it's from the government departments, the trade unions, or from the Equality Commission, the Labour Relations Agency. It is always about taking the needle and weaving the thread through the organisation and having that joined-up approach.

And you can see very much in the toolkit that it's saying this is not just an organisational issue, but it's a managerial issue, and you as a manager need to be able to spot and work your way through these issues that might arise. So, it's quite impressive the way I think that they have done it.

But I think the reality is we've all got to know more about neurodivergency. There's lots more diagnosis that's happening in relation to it.

The other ones are also those that will self-diagnose without a formal diagnosis and the problems . . . And maybe we'll just touch on that when we get to some of the case law as well in and around people will say, "Well, that person is on the spectrum. They're definitely ADHD", having no diagnosis whatsoever.

And also, you'll get the other side of the coin where someone will come along and say, "You need to do this because I've got ADHD". And you say, "Well, look, we'll maybe need to look at that formally, maybe get occupational health set up about looking at adjustments", and it turns out that they've completely self-diagnosed themselves with it as well. Then you're sort of saying, "Well, where does that leave the employer?" So, lots of issues that arise around it.

I think one of the important takeaways from all of this as well is that from a legal perspective, your eye is always going to be on the ball that when someone is neurodivergent, they might automatically have a disability and they might therefore have protections under the law in relation to their diagnosis. That may well be true, but I think we have to take this back to the individual.

Neurodivergent is not necessarily or automatically going to be a disability. I think the reality of the situation is that when we look . . . and I'll go through this in a minute in relation to the definition of disability. But the reality is it probably is going to fall in. I think it's more likely than not.

But that said, it doesn't mean that any or all neurodivergent people consider themselves disabled. And that "disabled" word can provoke responses and reactions sometimes that are maybe not what's intended whenever the conversation happens and takes place.

So, I think the key thing for this, if you're dealing with a neurodivergent employee, is that you're dealing with it sensitively. You can deal with it fairly, and you can be robust where you need to be, but I think you always need to build in that sensitivity around it.

You'll get some people that will put their hand up straight away or that will come in on the first day and tell you, "By the way, I'm just letting you know that I have this condition". You'll have other people that will see it as a hugely private matter and that they won't want to make a disclosure at all to the employer. So, you need to just be careful.

And even if you're spotting signs, even if you've got your line manager coming to you and saying, "Listen, this employee, there's something not right here", it's always about treating it sensitively because the reality is they may have the protection of the DDA.

I think, ultimately, it's up to the worker. They have the right to identify, if we want to put it that way. They have the right to identify whether or not they consider themselves as disabled or not.

We're always looking at D&I, the diversity and the inclusivity, and we're doing that for both the employer and the employee. But some employees will not want to discuss their diagnosis. And it's just important, I think, that there's proper training that goes on for the managers, for supervisors, those that are essentially tasked with those sort of management aspects, that they're properly trained in terms of how they deal with it. 

Just to mention about neurodiversity, some of the statistics in and around it. They say that the neurodivergent employees are 30% more productive. There's a great retention rate of around 90%. And in this particular time that we're living in relation to retention, I think that's a really positive step.

You get a wider talent pool of special skills that come along with neurodivergency. There is innovation, creativity, and enhanced problem solving. It can really bring a positive organisational change to your culture, and it can give your organisation a competitive advantage too. So, I don't think that in any way it should be viewed negatively, and I think that there are so many positive things that come along with it.

I was going to say that just in relation to the legal rights, Christine, employees that are neurodivergent that have a disability, or are defined as having a disability, they have day-one rights not to be treated less favourably or suffer discrimination on the basis of any disability that they have.

And in fact, you don't need to be an employee. A lot of the case law, when you read it, comes around from recruitment processes and issues that have arisen in recruitment that are laterally found to have been equivalent to less favourable treatment, or where there haven't been reasonable adjustments provided for. So I think careful to look at that. 

The other things that come out of it, for me, is it's not just the ordinary discrimination, less favourable treatment, didn't get a reasonable adjustment. We need to be really careful around harassment, victimisation, bullying.

Sometimes neurodivergent employees can be vulnerable and could be susceptible to that, particularly where line managers are frustrated with the manner in which they're working or see that they're not working in the way that they want them to work. It can result in potential claims of the employee feeling that they're being harassed, they're being victimised. I think just special consideration needs to be given to those.

But all of those protections all flow from the Disability Discrimination Act 1995, as amended, because it has various amendments, and always keeping an eye on the ball that we do not have the Equality Act 2010 in Northern Ireland. It only applies in England and Wales, and we still work off our Disability Discrimination Act. 

For someone to succeed with a claim in relation to disability discrimination, they have to be able to demonstrate that the employer knew or should have known about the person's disability. So even if the person hasn't disclosed it to you, and if it is a circumstance that you should have known about it, a tribunal can look around those issues as well to decide that.

But the burden of proof will always fall on the claimant to prove that they have a disability. And that's where in tribunal cases you'll see experts coming along, doctors, and maybe even representatives from charitable organisations to support that.

Just a little bit about disability. We'll all be familiar with it, but in order for a condition to be viewed as a disability, it has to be a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out their normal day-to-day activities. 

The long-term aspect on it generally means 12 months or more. And I think for a neurodiverse person, that's not a high bar to take, so I think they're probably going to fall in under the long-term aspect.

The substantial effect, it has to be something that's not minor or trivial. There has to be some impact with it.

And the normal definition of day-to-day activities doesn't exist, so you need to be careful around that. The tribunal tend to adopt a very broad definition of what normal day-to-day activities mean. It can mean from getting out of bed in the morning and putting your clothes on to having distractions in work, or being more distracted than other people would be at the workplace.

So, it is a fairly broad definition of disability, and you would always tend to err on the side of caution, I think, when it comes to any neurodiverse employee. 

Christine: Yeah, and I think we're talking about different diagnosable conditions, etc., at the minute, but really, is anyone neurotypical? I think the same as you. We have no way of knowing. So, this is a conversation that helps you work better with all your staff more effectively.

We did a training session on neurodiversity in Legal-Island. One of the questions we were asked . . . There was a sum put up on the board, and we all had to work out the answer. And then they went around and asked, "How did you work that answer out?" And of the 25 people sitting in the room, we all had a different way of working out a simple sum. So, none of us think the same way.

I just thought it was such a clever way to demonstrate that there's no such thing as typical, really, and that we all think in different ways. And of course, I think I think normally, you think you think normally, and that's kind of where the tension arises. 

There are some companies that are actively pursuing people that are not neurotypical. Google have announced that they want to have a certain very high bar of people who are not neurotypical working for them.

Now, I'm sure they're an extremely lovely company, but they're also an extremely profitable company, and that's what's in the forefront of their mind when they're recruiting these guys.

And there's a company here in Belfast called Exploristics. They are a tech firm, and I heard them speaking about this very issue. They get that they're up against the Googles of the world in recruitment for techie jobs, so they are making it as inviting an environment as possible for people who think in all sorts of different ways.

They make brilliant reasonable adjustments for all their employees, be they parents, be they women going through menopause, be they neurodivergent employees.

So, they're a great example, and you should have a look at them. If they're speaking at any event on neurodiversity, I would highly recommend that. It's really interesting what they're doing.

So, yeah, I think embracing this is what you need to be doing, and it doesn't have to be scary. It requires you just to think a wee bit clever.

Seamus, we were talking about when you're recruiting and you're asking that question, "Do you need any reasonable adjustments?" It's about rewording that, isn't it, so that you're not saying "disability"? People don't believe that it's a disability a lot of the time and don't want that label. But you still want them to feel free to tell you what they need to work effectively. 

Seamus: Yeah, that's it. And I think that seems to be what's coming out of a lot of the articles that I've read, is that there's not a circumstance where people are saying, "Oh, it's great I can be diagnosed as neurodivergent, and I can get ahead here in relation to life and work in general".

We talk about reasonable adjustments and whether there's a sort of tag that goes along with reasonable adjustments and how it's viewed. Maybe it is more about changing the tone of that to just asking, "Are there any adjustments needed?"

And interestingly, whenever you have a tribunal case and you have your case management preliminary hearing, it's one of the matters that is dealt with. It's one of the issues in the case management preliminary hearing that the court ask, "Does anybody need any adjustments in relation to their attendance or the hearing of the case?"

Those could be maybe needing a ground floor room because somebody needs wheelchair access, to somebody that needs to take a five-minute break within every hour in order to make sure that they're comfortable and that they're able to give their evidence and things like that. 

I suppose it's a non-threatening question. It's a straightforward question and a non-offensive question of "Do you need any adjustments?" without placing any onus on the person or making the person feel that they're being prejudged or getting off on the wrong foot at the very start of a potential relationship.

Christine: We've got a question in here, Seamus. So, what's the position where the neurodiverse employee is behaving in a way that significantly impacts another employee? So it's kind of causing dignity at work issues for other people. How do you strike that balance? 

Seamus: I mean, I think that the aspect of it always has to be that open communication, and there has to be the ability to have those discussions.

And it's interesting there. I just wonder whether there is a defined diagnosis in relation to neurodiversity, or whether it is suspected that this person is, or whether the person is in fact, self-diagnosed in relation to it.

I absolutely don't think that just because someone is neurodiverse, it gives them the ability to act out, be difficult, create toxic environments. That shouldn't be allowed to proceed.

And again, when we come to the adjustments, we're always looking at what is reasonable. I think whenever you're dealing with an individual that maybe is creating problems like that, it's looking at what the solutions to those problems might be, what is the reason for the acting out, and is there a way to resolve it.

Maybe some of those general things that we see about, "Is there a quiet space for the employee to work in without segregating them, without them feeling that they're segregated?" But is there time during the day where they need to take time out? Do you need to build in breaks where they can take time out and come away? So, it's looking at what the possible solutions for that are. 

One of the other aspects that I come across are the noise-cancelling headphones for someone in work where maybe they don't get drawn into conversations or they don't overhear things that are going to cause distractions and throw them off their work.

So, there are lots of steps that can be taken, but it is about getting to the butt of the issue. I think as long as you're not making any decisions that would be seen as treating the person as less favourable, but you're working in the realms of what ultimately is reasonable here and what it is that we can do.

There could be a general fear factor also of somebody saying, "I'm worried about disciplining this employee or taking them to task on a matter because they have a defined diagnosis and they have a disability, or they might have a disability", but you have to take a sort of straightforward approach in relation to it. I just think that where there are unacceptable matters happening, you can't just turn a blind eye to that. You have your other workforce to look after also. 

Christine: The questions are coming in thick and fast here, Seamus. What's the position when at the recruitment stage somebody doesn't disclose any issues, but then they're offered the job, then they disclose that they need some reasonable adjustments and it's going to take a bit of time to get special equipment in place or whatever it is they need? What does the employer do in that circumstance?

Seamus: There's no obligation on the employee to make a disclosure that they're neurodivergent at a recruitment stage. And if there's disclosure made after that, then I suppose, without jumping too far ahead, there is an element where the vast majority of times these adjustments are very simple, straightforward adjustments that could be made to accommodate.

It's always that aspect of "Do we need to build a new part of the building on for someone?" No, that's not a reasonable adjustment. It wouldn't be seen as being reasonable. But often these are small steps that can be taken.

And if there is equipment that's required, it's working with the employee that you've taken on to say, "Well, is there an immediate start that you can do? Is there a variation of the role that we can give you to do until we're in receipt of software?" and things like that.

There is no obligation to inform the employer at all. But once you're on notice of it, it does change the position for you as the employer. 

Christine: And this next question dovetails into that. So, say somebody is working with machinery and is on medication that the employer does need to know about. You said there's no obligation on the employee to tell, but there's an obligation on the employer to ensure health and safety. So how does that fit together? 

Seamus: I mean, there would be an overriding concern, I think, if somebody was taking certain medications that might make them drowsy or that might put others at risk within the workforce. Some of the epilepsy medication can do that. It can make people very tired.

You're entitled to ask as well. Ultimately, the person doesn't have to come and tell you, but you are entitled to ask. And maybe in those circumstances, as well, you would think about maybe arranging occupational health reports where disclosures can be made in those reports and provided back to the employer.

But risk assessment, ultimately, again, I don't think that it would be reasonable to make a finding to say, "Look, you treated this person less favourably, and you should have done more for them than somebody else by placing the other person at risk of their health and safety as well". So, if they're forklift driving, those sorts of issues where medication has been taken, I think the reasonable position is if it's going to put others at risk, you can't proceed with that. 

Christine: Yeah. And then we've got a bit of a classic one here. There are no disclosures made until the dreaded disciplinary, and then, "The reason I've behaved in this way is because I have a neurodivergent condition". How do you deal with that? Does it bring everything to a shudder and halt? It is a bit of a classic one, isn't it?

Seamus: It is, yeah. And you do get that in terms of, "This is the reason why this is happening". I mean, often when you look at that and you break it down, it turns out that it's not the reason as to why it's happening.

Again, you're entitled to form review in relation to it. You may make a decision that you do need medical evidence and now that there's been a disclosure, you do need to get some sort of further information. And you can pause your disciplinary with the view of getting that.

But in my experience, they're few and far between where there has been a disciplinary action that has been taken for conduct, and the real reason for the misconduct is because there's a medical condition behind it.

You may find it more so in issues where there are performance concerns, where the person then comes and say, "Listen, the reason why my performance isn't where it should be is because of this". And then it is about looking at, "Well, what adjustments could we make in order to assist you to get you to the standard that we need?" 

Most of the time, those are very straightforward, simple things that can be done. But if it's going to mean that it's going to cost you £5,000 for one piece of software, that the costing of it is going to outweigh the productivity of it, then you'd be on the side of, "Well, that's not a reasonable adjustment. It's not reasonable for us to take those steps".

But if they're simple things, if it's a £50 pair of headphones, then it is. That is one that does happen, it does come up, and you do need to pause and give it consideration. But in my experience, in the majority of cases, it tends not to be the reason for the disciplinary coming forward. 

Christine: Yeah. And just looping back to the working with machinery question, if the disclosure is made to occupational health but not directly to the employer, does occupational health have to tell the employer? Are they allowed to tell the employer that information? Or is that a doctor-patient confidentiality matter that they wouldn't be able to tell the employer? 

Seamus: I think that in the workplace setting, there would be an onus for the doctor to make that disclosure, unless specifically the employee has said they don't want that to be disclosed.

Most of the time now, you'll see that medical reports are provided to the employee in advance for review. And I think that in the majority of circumstances, that is a question that is asked from the occupational health expert to the employees. "Do you want to see this in advance, or are you happy that it can just be sent?" And often they'll say, "We'll want to see it in advance".

But to be clear about that, the ability to see in advance is only to correct any errors that might have been made. It's not there to say, "Okay, I don't want you to report that", or, "Don't be saying that". The medical expert is the expert, and it's their decision, it's their opinion, and that's what you're getting the report for in the first place. So, it's error-correcting rather than, "No, I don't like that section in the report. Please take it out".

Christine: Yeah. So, it's not an editorial decision. They're just getting warned of what their employer is going to be told, essentially.

I might give the polls another go. I think it might have been me having the technical issues as opposed to Gosia. So, Gosia, if you're in the background there, if you want to put the polls up. I understand maybe you'll need to start from Poll 2, but if we give that a go just at this stage, it'll help us move into the reasonable adjustments conversation.

Are we seeing . . . Seamus, you're not seeing . . . I'm not seeing them again, but I'm going to take it that you guys are. So, if you could vote. Although how am I going to see the result is the problem. Seamus, are you able to see the results?

Seamus: I can see the poll, but yes, I think if it's clicked on the next stage, I should be able to see it. Yes, I can see the result. 

Christine: Great. Can you read them out, please? I'm having technical difficulties here. 

Seamus: Yep. So, the poll question is, "Do you currently provide all staff with neurodiversity awareness training?" A resounding 91% said no. 

Christine: Wow. 

Seamus: And 9% said yes. 

Christine: Wow. Well, I'm surprised by that. What do you think, Seamus? 

Seamus: Yeah, I'm surprised at it too. Ninety-one per cent is as high as I think we've ever gotten on a poll before. So, it's a resounding no that the training isn't being provided.

I suppose it's symptomatic as well, Christine, of how neurodiversity is dealt with in the workplace maybe. Maybe there are those cases and people say, "Look, we think that that employee might be on the spectrum", and maybe things are overlooked and tasks are not given to that person on that basis.

But you would anticipate that if there was training that was provided, it would enable the organisation, the business, and the managers to deal appropriately with any concerns around neurodiversity. 

Christine: Brilliant. So, the third poll . . . well, the second one because I broke the first one. "Would you like more information on Legal-Island's all-staff training course for your organisation?" I'm hoping to get a resounding yes on this one. I won't show the results on this one. This is purely just for us to know if you want to be contacted, but please click on that.

We have some new eLearning material just launched on neurodiversity in particular, so it is worth checking out to keep yourself on the right side. So please do vote on that.

I'm still not seeing it, so I'm going to take it that that has worked okay. Seamus, can I take it it's worked? 

Seamus: It didn't produce any results there for me either, Christine, unfortunately. But just the poll came up itself. 

Christine: Yeah, that's the poll. That's fair enough. We're not going to talk about the results of that one.

So, I think we've had a lot of questions on reasonable adjustments. Seamus, do you want to talk a wee bit about what a reasonable adjustment looks like in a neurodiverse employee or what would help? 

Seamus: Yeah. Essentially, under the DDA legislation, the employer has personal and it has legal responsibilities to consider, and then to implement reasonable adjustments for any disabled staff. And failure to do that could result in a claim of discrimination where the employee says that there's been a failure to provide reasonable adjustments, and they can bring a claim in the industrial tribunal.

The aim, just to mention that . . . and this is something that's in the toolkit, which I think is quite important. The aim of the reasonable adjustment is to level the playing field. It's not to give anybody an advantage. It's about really removing disadvantages for anybody that has a diagnosis or is disabled and to put them on the same level as any other employee. That's the simple aspect of it.

So, it's not that anybody should be deriving advantages from reasonable adjustments. It's simply there to sort of minimise the challenges that a disabled person could face, and to allow them subsequently to perform their best within the role that they've got. 

Reasonable adjustments will vary according to the individual. There's definitely no blanket that is routine or that one size fits all. You're going to have to consider reasonable adjustments on a case-by-case basis, and you're going to have to tailor the reasonable adjustment also to the specific individual.

I don't think that you can say, "Well, that person has ADHD, so here's the adjustment that fits them, and that'll all work out". That's not going to do it. And I think if you took that approach and you ended up in a tribunal, you would be in difficulties.

The key, I think, is about communication, and it's about being able to have those discussions with the employee. The employee has to feel comfortable in having that discussion, and there's an element of trust that needs to build up as well between the employer and the employee.

That aspect of somebody coming after the recruitment and then telling you can somewhat maybe look to damage the trust. But if you also flip that over, if you're a female and pregnant employee, you have no obligation to tell the employer that you're pregnant at your interview. So, there's a bit of the same process that happens there in relation to this also. It's just getting our heads around it, I think. 

And most times, a female employee will not disclose a pregnancy because they will automatically assume they will not get the role because they've done it. And that's if they're in the ability that they can present not showing that they're pregnant as well. It's that kind of aspect. So really, it's just sort of moving those boundaries slightly.

But the reasonable adjustment could be around software, it could be around equipment, it could be something as simple as just support and mentoring as well. But the types of reasonable adjustments that we have, there's a GMB guidance piece from the Union on "Thinking Differently at Work", and they set out a list of potential reasonable adjustments.

I have to say that whenever you go through the list, again, it's not that you're ringing up the local builder and saying, "We need to get a new section of the building added on here". It's straightforward, simple steps that can be taken.

And realistically, as well, if you get into a tribunal setting and you have a hearing at the tribunal in relation to this, the tribunal aren't going to really be expecting that there's been huge movement of mountains here in relation to accommodating someone. It's back to that point that it is reasonable.

I'll just put a few of these, but sitting employees in a calmer area of the office with less disruption is viewed as a reasonable adjustment. Noise-cancelling headphones. Altered light or ventilation. Sometimes neurodiverse individuals can be very susceptible to light and to heat and things like that.

Software is a really good one. And I think definitely whenever I think back to the prior webinar with talk tech at the time, that was all about technology that had come that was really aiding and helping neurodiverse people through maybe apps and those sorts of things that are fairly inexpensive. And even if they're a one-time buy, they're still fairly inexpensive, but they can help massively.

At recruitment stages as well, maybe to allow the prospective employee more time to see questions in advance of the interview. That has been held to be a reasonable adjustment, and it's useful as well if you have somebody that maybe English isn't their first language and they're neurodivergent as well. That's something that can really assist.

Flexible working hours for the individual themselves can really assist. Maybe they don't like coming in, in the rush hour whenever the traffic is bad or whenever the bus is full or the train is full. Maybe they prefer the calmer aspect of coming in earlier and leaving earlier, or that sort of aspect around working hours.

Timing of meetings, whether they're in the morning or in the afternoon. Some neurodivergent people will do very well in the morning, or some of them will say, "No, I'm better in the afternoon because it takes me a while to get going".

Get the advice from occupational health, from their GP, and ask about, "What reasonable adjustments could we provide here that would assist the employee, if there are any?" And that will be a discussion that will take place between the medical professional and the employee that will be recorded in the report.

And then when you get the report, I don't think you need to jump and say, "Well, it says in the report I have to do it". Again, you're looking at the perspective of, "Is this something that we can accommodate? Can the business accommodate these adjustments that have been suggested?"

I think in the majority of cases, you can. But in other cases, you won't be able to.

I remember a case of somebody with Crohn's disease who needed to be close to the toilet. That fear that, "We're going to have to change our cloak room into a toilet now to accommodate". No. There's an easier way to do it. Look at where the toilets are and look what the accessibility is in relation to it, and see if the employee can move to a seat that's closer to the toilet. That's it in a nutshell. So, it's about not panicking, and it's about giving proper consideration.

Just always remember that every employee that is neurodivergent is unique, and they can't be all treated in the same way, and those adjustments need to be specific to the employee.

What I see the most is this fear factor of having that discussion. "How do I bring this about? How do I talk to the employee about this? Will they sue me? Will they hate me? Will the relationship break down because I raised this?"

And I think that's a really good suggestion that you'd mentioned there, Christine, about taking the pressure off reasonable adjustments. "Is there anything that we can do in order to help you? We're not saying that we can do it, but if you tell us what it is, we'll give it consideration and come back to you". I think that's the process that is there.

And it always has to come from a genuine place. If you feel that the employee is using this as an excuse, that there are other things going on in the background, again, open conversation in relation to that.

I think key things for your workplace are that there's education and awareness. If we're hitting 91% at no training on it, that's something that needs to be looked at. It's too serious an issue, and you see too many of these disability claims coming across the desk. 

I think flexible working arrangements are good. Clear communication. Looking at those sensory-friendly or those types of workspaces or work areas. Definitely your neurodiversity training, the mentoring programmes, regular check-ins whenever somebody has come to you, and just checking in. The line manager can do that and should be in a position to spot where issues are maybe arising again.

And don't forget about all those really brilliant charitable organisations that are out there that can give you advice and help you along with matters. There are specific organisations for specific conditions as well, and you can engage with them and get some advice for them.

That might work really well for an employee that you think is overinflating their position or isn't being genuine about it, to look at talking to some of the charities. They will do that on a cost-free basis, most of them, as well.

So those are the sorts of things around reasonable adjustments I think that we could look at and maybe do a bit better. 

Christine: Brilliant, Seamus. I'm very mindful of the time. I know we had intended to talk about the Equality Commission case of Mr Kelly, but I think we don't have time to talk about it in detail. I think people should go away and look at it because it's about a gentleman who was undiagnosed, isn't that correct? 

Seamus: Yes. There was no diagnosis, and the tribunal still made a finding for the employee. There had been issues in the background that were never disclosed to the employer or that the employee didn't necessarily know about until the employee got an understanding when he got expert evidence and advice and reports. So clear position there on that one.

This case went to the Court of Appeal, and the Court of Appeal said, "The tribunal have erred", and sent it back for reconsideration by the tribunal in relation to it. So, it's not always a situation where you have to have a report or a defined diagnosis.

It's back to that question again of, "Is there anything that we can do in terms of assisting or helping you, providing adjustments for you?" in an open way that would hopefully move the conversation on.

Christine: Brilliant. Thanks very much, Seamus. So, I've got a few takeaways for you guys, then, just to sum up.

Firstly, I would say just be aware that neurodiversity covers a very broad range of areas in different conditions, which express themselves in various ways. It can be autism, ADHD, dyslexia. There is a very long list of different things it can be, so don't be pigeonholed into thinking it's just one thing.

Secondly, it's incredibly important not to stereotype people in your organisation. While you may know somebody who has autism, not everyone with autism is going to be the same, just the same as people with physical disabilities aren't going to require the same adjustments. So, look at the person as an individual and try and tailor the support for them. 

And thirdly, if in doubt, talk to the person. They are the best person to know what can assist with their condition. So just have a very open dialogue with them, as Seamus has said.

So, 91% of you aren't currently training your staff in neurodiversity. I would say please do so if you can. Legal-Island has our brand-new neurodiversity awareness eLearning course. So if this webinar has inspired you to make a positive change, you can speak to my colleague, Debbie, who'd be happy to discuss the course with you. She can give you a free demo if you would like one. You email debbie@legal-island.com. Those details are also going to be in the webinar email as well, so look out for that.

If you are going to miss Seamus and I, as we are off in November, you can find us on our podcast on Spotify, Amazon Music, and Apple.

The reason we're taking a break in November is because we have the Annual Review of Employment Law. Seamus is going to be there. I'm going to be there. Seamus is going to be doing a brilliant case study, a bit of an interactive session on philosophical beliefs in the workplace. I think that's going to be great fun, so please do join us.

There are not many in-person tickets left. I'm reliably informed by marketing there are about 10, I think, in-person places left. So, if you want to see us at Crowne Plaza on 27 November, you need to get in there quick. But you can also join us from home or the office if you want, as it's a hybrid event.

Seamus and I are always on LinkedIn. As I said today, the topic was picked by one of you guys, so please do get in touch if there's anything you would like us to talk about. We love to hear your ideas.

Have a lovely weekend. Thank you to Seamus. Thank you to Gosia. Apologies for my technical issues. They were not Gosia's. Have a lovely rest of the day, and we'll see you next time. Thank you.

Sponsored by: