Christine:  So, let's get started on neurodiversity. So this is another area that maybe three or four years ago, we wouldn't have been talking about it at all. It was really very much in the sidelines, but it's being pushed to the fore more and more. It's something we need to be getting our heads around, isn't it, Seamus?

Seamus:  Yeah, absolutely. I think that the days are gone now of employers having a worry or a concern in relation to certain employees, maybe disclosures being made at interviews or during recruitment. And thankfully, I think the sort of horrible days of really open, direct discrimination are over.

But it's always one that catches me in relation to "What is it to be neurodiverse? What is neurodiversity?" And even whenever I was looking at this, it's really hard to get a good, clear, concise example of somebody writing down what it is.

Ultimately, the best that I've come across . . . and this isn't just one. It comes in four parts. But it's talking about neurodiversity is the term used to describe differences in the way that people's brains work. That's all it is. It's as simple as that.

And the sort of acceptance that everybody's brain is different and the way that we all function is different. There may be what is perceived to be the norm, and there may be a view then that there are people outside of that that just don't compute and just don't sort of function in the same way. But it does refer specifically to diversity in the brain and our cognition, essentially.

And I suppose the neatest way I've seen it is that neurodivergent people experience, interact, and they interpret the world in different ways than what other people may do.

I do a bit of education work for schools, and certainly I think the ability to get a diagnosis is much better than what it has been in years gone past. And I think also that there's a large gap there where individuals haven't been able to get a diagnosis, but because of the knowledge that's out there in relation to certain types of conditions and about neurodiversity in itself, people can very much have an understanding that, "Well, that's the way I am". There's almost this self-diagnosis that happens as well.

And I think it is very difficult in later life to try and get a diagnosis, unless you're going to pay privately, given where we're at with health and all of that.

But the likelihood is you're going to know somebody that's neurodivergent. And as I said earlier, sometimes it's apparent. Sometimes it's obvious. It can be visible. And other times, you know nothing, and you'd be very surprised for someone to eventually tell you that they have a sort of related condition.

Then there's that aspect sometimes when you're working with somebody over a period of time, you maybe have a suspicion about it. But what you'll find is that that person has really special skills, their ability to bring additionality in relation to your workplace. They'll be your go-to person for specific projects or whatever it is.

So just some of those conditions that we talk about, and this is by no way an exhaustive list at all, but people that maybe suffer from autism, ASD, ADHD, dyslexia, and dyspraxia are sort of the broad list. But as I say, that's not divergent.

I would say the research is that you're talking maybe as much as 1 in 5 of the population have some form of neurodivergence as well. So it's nothing that you're going to be able to escape as an employer or run away from. And really, what you need to do is have a procedure, have a policy, have training in place in order to deal with it.

But I think that the position around it is that we are all working in our workplaces now and we've got our diversity and our inclusion, our D&I hats on. We're very alive to this.

Some of the stuff that I see coming across my desk, Christine, in relation to it would be issues around suspicions, maybe that there are issues arising in relation to somebody's capability, suspicions around maybe what the employer sees as shortcomings, but they tend to forget about the really strong aspects that the employee brings as well.

Also, I would see issues around employees coming forward and saying, "Look, just letting you know that I'm neurodiverse, but I'm not giving you any more details about it". And there's a bit of fear, I think, that happens in relation to it.

Or simply the person themselves suspects that they have some form of neurodiversity, but it's never been diagnosed, or they've never been given a proper notification of it sort of through medical advice or anything like that.

So the issues that I see arise and that come across my desk tend to be a fear factor, absolutely, from employers as to, "Oh, we don't know what to do. How do we handle this?" and a panic.

And also, more so I see it's issues where the employee hasn't been wholly transparent in relation to their conditions. They'll maybe say that there is a condition. And sometimes it only comes out after capability proceedings have been started, and then it shows up.

I was reading through some of the case law there, and it isn't a situation in and around with disability discrimination because you have these invisible disabilities that happen. It isn't a situation that an employer needs to be aware of the disability in order to discriminate. But also, there's a point then where the employer should or ought to have been aware, and those issues that arise.

And sometimes I hear this saying of, "Oh, we'll just leave that. We'll not get into it because I suspect that that employee has X, Y, or Z. But they never confirmed it, so I'm just not going to ask any questions about it and then I'll be in the clear". And that's not the position because then you're in the whole indirect discrimination aspect and everything else.

The reality is I think we have to face up. We have to be realistic. If it is as much as 1 in 5 in the population that are neurodiverse, we are going to be working with people, we're going to have people in our places of work that we need to provide assistance to in relation to it.

So for me, it's very much about the education, the training, the preparing, the assistance.

In saying that, I don't think it's anything for anybody to worry about, to panic about if they suddenly find out that they have an employee who's neurodivergent. There's real positivity and real upsides to a neurodivergent employee.

Looking around, some of the statistics show that people that are neurodivergent can be as much as 30% more productive within the workplace. There's a 90% retention rate because there's a loyalty that comes along with neurodivergence. You have a wider talent pool to select from.

Just before we come on there, we were talking about the difficulties of staff recruitment and retention. There's a fantastic wealth and a pool here of neurodivergency that employers can get really brilliant benefits from. So it's that aspect of anybody who's neurodivergent bringing their special skills that you as an employer require and what you want to seek out.

And I think some of the stuff that I read, especially in tech and sort of aerospace and even somewhere around the sort of MI5 jobs, they've been actively looking for . . . and Ministry of Defence and stuff like that as well, looking for these specifically trained individuals that bring so much to the table just because they have a different thinking pattern and can bring a different way of thinking and looking at things. So it's about the innovation and the creativity, the enhanced problem-solving that comes along with it.

Interestingly then, as well, I was reading an article that Lewis Silkin had looked at, and they'd done some research in and around risks for employers and the Tribunal cases that have been brought.

And just as a by-side, this came from Lewis Silkin that said that in between 2018 and 2022 in Northern Ireland, they were able to cast that there was 19 cases specifically around neurodivergency in Northern Ireland. That was in comparison to the period of 2003 to 2017, that 14-year period there had been eight cases in total. So you can really see how the issues are coming to the fore.

And I suppose it's the expectations now of tribunals and what we expect HR advisers to be able to deal with and tackle through training, through openness, through transparency, in relation to their neurodivergent employees.

This isn't always the position, but the likelihood is much higher that a neurodivergent person is going to be disabled for the purposes of our discrimination laws.

So under our 1995 Act, you have the potential that you'll get somebody with protected characteristics, and that you will need to look at things like reasonable adjustments, adjustments to their working patterns.

And I think some of the stuff that I had looked at included that ability for things like checking in with employees. It's about the education and awareness, looking at flexible working arrangements, and having clear communication, sort of sensory-friendly workspaces. But that neurodiversity training is really important.

And I think you sort of see the case law progressing here and leading up to . . . We'll get on to in relation to the Court of Appeal case, and just how important that's going to be.

It's similar to the other stuff that we talk about frequently in relation to harassment and bullying and discrimination in workplaces, things like mentorship programmes, allies in work, and making those accommodations for your staff and that when they need them.

A big part of that always has to be, I think, sort of the inclusion of medical assistance and medical advice. And whether that is through occupational health or through a specialist, medical advisory, consultant, or whatever it is, I think that those open discussions need to be happening between the employee and the employer. It's nothing for anybody to shy away from. This is about educating and then making those reasonable adjustments.

And sometimes, it is medical advice, but the other really good one is if you have an employee, you don't know much about their condition, and you can't get resources in relation to it, reach out to one of the charitable partners for that specific condition. You'll find that the likelihood is that they will have somebody that specifically deals with employment side and giving advices.

Now, it just takes me back to . . . we looked at neurodivergence before, and there's a prior podcast that we did back in October 2020. Louise McQuillan of Texthelp was on that podcast. And if anybody wanted to go back and listen to it, they're free to do that through our various platforms that our podcasts are on.

But that was a really brilliant session. Louise was giving us information about how information can be given to employers and assistance through technology to help employees along the way in relation to it.

Maybe I want to just have a quick sort of run-through of some of the case law because I want to get to the point of the Court of Appeal case.

But recent cases there. There's a case of Morgan v Buckinghamshire County Council. It's an Employment Appeal Tribunal case from 2022. And this was a social worker who worked for the council and had been giving gifts and letters to children that she was working with. This was deemed inappropriate by the employer, and she was dismissed.

Employer was taken for unfair dismissal proceedings. And it's an odd one because the Tribunal looked at it and ultimately said that there was a justification because there was risk in and around a social worker giving gifts and letters to children that they were working with.

Ultimately, they found that this wasn't related to the employee's disability, but they did find for harassment in relation to it because there were specific comments that were made by the employer around the conditions themselves.

So it's not always a clear-cut case of, "Oh, there's a disability here. Therefore, they're going to make a finding for us".

Similarly, the case of McQueen v The General Optical Council, this was an employee who was dismissed for rude and aggressive behaviour. The employee said, "That's part of my neurodiversity. It's part of a disability that I have". And the Tribunal said, "No. This is down to the fact that you have a short temper and your personality rather than your disability".

Now, there was lots of medical evidence that was provided, but bear that one in mind for when we come to talk about Kelly here shortly.

Another case, a 2003 Employment Tribunal case in England. This is a sort of well-known, publicised case of Borg-Neal v Lloyds Banking Group. This was a manager in the Lloyds Bank, and it was during race awareness training that the manager had used the "N" word and was subsequently dismissed.

Took a claim in the Tribunal and said his disability was impeding his ability to properly express himself. And the Tribunal did find in favour in that one for the claimant, and the award was almost £500,000. So really significant award in relation to it.

There's another case of AECOM. I think it's going to be AECOM v Mallon. It's an Employment Appeal Tribunal case of 2023. This was where there was a dyspraxic employee who had asked for . . . Or rather than an employee, it was during a recruitment process and had asked for adjustments to be made in respect of the recruitment process that the employer refused to provide. And ultimately, there was a claim brought, and the employee was successful.

There was an ASD claimant in the case of Duncan v Fujitsu Services Ltd as well, where they said that they could only communicate through email or through letter or some sort of written correspondence, and the employer, Fujitsu, was insisting that there had to be oral discussions. And again, there was a finding that there was improper adjustments made.

Really interesting one there, Rackham v Judicial Appointments Commission, which was a claimant with ASD and Asperger's syndrome. It was around a judicial appointment and adjustments that the employee had requested that the Tribunal found weren't reasonable, despite the fact that the employee had other disabilities.

And then there's that recent case of Morrow v DAERA. Not necessarily a neurodivergent case, but that was a recruitment process for a park ranger in Crawfordsburn Park who had hearing impairments. Again, through that recruitment process, there weren't proper reasonable adjustments made, and there was a £50,000 award made in relation to that one.

So it brings us up to that case yesterday that we received from the Court of Appeal of Kelly. And it's an interesting case. I've read the judgement on it. It's a 28-page judgement from the Court of Appeal, and the decision was very critical of how the Tribunal dealt with the case.

So, again, we have a situation where the claimant worked in the Department for Communities, Department of Finance, and the claimant had said that he had a mental health disability. No diagnosis of a specific type of condition related to that.

But ultimately, I think the position of the respondent was that there were various types of conditions, but that it was never actually defined as autism. And the Tribunal seemed to support that view in its outcome to say that there wasn't a disability here because there wasn't a defined terminology of autism given. The Court of Appeal were very critical of that finding from the Tribunal itself.

And it's interesting because there were two well-known psychiatric doctors involved in the case, one for the claimant and one for the respondent. But ultimately, the Tribunal hadn't found for the claimant, and the Equality Commission backed the appeal to the Court of Appeal.

Ultimately, I think there was two interesting points. One, obviously, in and around the fact that you don't need to have a defined diagnosis in order to be successful with a claim for discrimination.

But in addition to that, the Tribunal seemed to have spent time around the fact that the claimant could do work outside of his job relating to emails and correspondence, and the Court of Appeal have been heavily critical of the Tribunal in and around that.

There was a lot to do with the length and the complexity of these documents that the claimant supposedly was able to do outside of work, and the Tribunal was saying that didn't follow into why he couldn't do them in his place of work.

So interesting stuff in and around that. It has been sent back to the Tribunal, essentially, for the Tribunal to rehear the case. I think there were four points in the case, and the first one was whether he qualified as disabled or not. And now he'll go back to deal with that.

But interestingly, they said in the conclusions that the evidence before the Tribunal was inconsistent with and contradictory of their determination. And they said that there was a straightforward error on the basis that the appellant had to have a diagnosis of autism as defined in the Autism Act in 2011 in order to succeed.

And all three said that the Tribunal placed irrational weight on its own assessments of the appellant, particularly on documents compiled outside of the working environment with the considerable assistance of another person. So it's interesting there in relation to how that's been moved on.

I did read the statement that the Equality Commission had issued about the case as well. But it's a digestible enough read and I think it's a good one for somebody to take a read through.

Christine:  Yeah. Interesting that the Tribunal got it wrong because they didn't understand neurodiversity enough. So there really is no shame in it. We're all learning about this, but it's interesting that even in a Tribunal, there was that gap in understanding really about these conditions, wasn't there?

Seamus:  Yeah.

Christine:  I'm just mindful of the time, Seamus. I'm going to do a wee bit of a wrap-up of my takeaways on neurodiversity.

So first one, really, is having a diverse workforce enhances your organisation. You get a diversity of perspectives, and it'll increase employee engagement and retention. That's why this is important.

Secondly, it's important not to stereotype. We need to treat everyone as individuals. Not everyone with a given condition will have the same requirements.

And thirdly, being open-minded and flexible about how you communicate information is normally a good starting point. That might in itself be enough to help your neurodivergent employees, but if not, it also opens the gates then for them to talk to you about reasonable adjustments and for you to identify them.

Somebody has dropped into the chat a very helpful comment, which is the CIPD have published a Neuroinclusion at Work report. So hopefully, Maria, if you could drop that wee link into the general chat, we can see that. You might have already done that, Maria, so apologies if you have.

And someone else is asking, "Does Legal-Island have a course on neurodivergence?" We don't yet, but it is being worked on, and you will be the first to know once it's up and ready to go.

Legal Island Training Resources for Your Staff

Diversity & Inclusion - The Importance of Conscious Inclusion | eLearning Course

Are you responsible for overseeing the implementation of training for all employees on diversity and inclusion policies in your organisation?
Legal Island’s Diversity & Inclusion - The Importance of Conscious Inclusion eLearning course will help your staff understand the importance of inclusive behaviour in the workplace and the value it brings to both your staff and your organisation. This course is tailored specifically to your jurisdiction and provides comprehensive compliance training for all employees within your organisation.

Click here to view our course on Diversity and Inclusion in the workplace.