Acas guidance on neurodiversity at work

Earlier in the year Acas published new guidance on neurodiversity at work.

In our experience, employers can find managing and supporting neurodivergent employees one of the most challenging issues in employment law, as awareness of neurodiversity is relatively recent. When employees have a physical disability, employers are far more familiar with the reasonable adjustments that may be required. While there may be challenges in implementing those adjustments (for example the expense of doing so or complications arising from the physical lay-out of a building) it is easier for them to understand how an adjustment might help and how it can be implemented. However, the types of adjustments required to help a neurodivergent employee thrive in the workplace often require managers to think or communicate differently. Adjustments that require you to change the way you behave can be much more difficult to implement successfully – but are no less important.

Managers can also be afraid of saying the wrong thing or fearful of asking the questions that might help them better understand an employee's needs.

The Acas guidance is a really helpful resource both in terms of how to talk about neurodivergence and how to become a more neuroinclusive organisation (that is, a place where neurodivergent people feel included and able to be themselves). We recommend that any manager or HR professional managing a case involving neurodivergence should read the guidance in full but, in this article, we explore some of the key points.

Terminology

The advice explains some of the terms that are commonly used when talking about neurodiversity, while also acknowledging that the language around neurodiversity can change over time and different people will have different preferences with regard to what language makes them feel more or less comfortable.

In the advice, Acas uses the term "neurodiversity" to explain the unique ways in which people's brains work (while everyone's brain develops similarly, no two brains function the same way), and "neurodivergent" to mean having a brain that works differently from the average or “neurotypical” person.

The guidance recommends being sensitive in the language used when talking about neurodiversity, for example avoiding terms like "suffering from" or "symptoms", which can suggest a neurodivergent condition is an illness. Some helpful suggestions for how to know what language to use when talking to a neurodivergent employee include asking them what terms they prefer, listening to what neurodivergent employees say when talking about their own condition, and matching their language where appropriate.

Acas' advice is also helpful in understanding how some common conditions can affect neurodivergent people, including ADHD, autism, dyslexia and dyspraxia.

The guidance also explains how some neurodivergent employees may mask their condition at work, for example where they do not feel psychologically safe in the workplace, and the impacts that this can have on their mental health.

Masking can mean that, as an employer, you may be unaware that a particular employee is neurodivergent until something happens that leads to them seeking a diagnosis or deciding they need to make you aware of it. However, if you have taken steps to ensure that, as a whole, your organisation is neuroinclusive that can improve the experience of all neurodivergent employees, including those who may be masking at work or have not yet been diagnosed.

One of the key aspects of neurodiversity is that not every person with a particular type of neurodivergence (eg ADHD or autism) experiences it in the same way. Accordingly, if you are managing or supporting a neurodivergent employee it is important to understand how they personally experience their neurodivergence and what works for them as an individual, rather than making assumptions. However, the explanations in the Acas advice can be helpful in gaining an understanding of some of the more common aspects of different types of neurodivergence.

Is being neurodivergent a disability?

The Acas advice works on the basis that being neurodivergent will often amount to a disability under the Equality Act 2010, although notes that many neurodivergent people do not see themselves as disabled. From a legal perspective, the question of whether a given type of neurodivergence is a disability is assessed against the standard legal test of whether an impairment has a long term substantial adverse effect on someone's ability to carry out day-to-day activities. That means there may be some cases in which neurodivergent employees are not significantly affected enough by their conditions for the legal definition of a disability to be met. 

However, assuming that a neurodivergent employee is disabled for the purposes of the Equality Act is sensible, and will mean you can best explore whether and, if so, what reasonable adjustments can be made for them. Ensuring that other employees are sensitive to their conditions could also avoid harassment or discrimination claims (although you should not share the employee's condition with their colleagues without gaining their agreement first).

Performance, conduct and capability

The Acas guidance gives advice about dealing with conduct and capability issues in relation to a neurodivergent employee, which is an area we know employers find challenging.

Most importantly, employers need to make sure they have reasonable adjustments in place for disabled employees before instigating a formal performance procedure. Getting support in place can help the employee to improve their conduct or capability without the need for a formal procedure – or, in many cases, mean there are no performance issues in the first place.

If an employer suspects that an employee might be neurodivergent and that adjustments might be helpful, the Acas guidance advises against asking an employee directly about this in the first instance. Instead, employers are advised to discuss their observations with the employee, for example, that the employee appears to find certain things difficult, and focus the conversation around what support and reasonable adjustments might help.

If employers need to go through formal capability or conduct procedures with neurodivergent employees, despite having put appropriate support in place for them, employers need to consider making reasonable adjustments in how the procedure is applied.

Acas provides some helpful examples of what might amount to reasonable adjustments for neurodivergent employees. They include talking through written correspondence with a dyslexic employee or repeating important information, and allowing someone with knowledge of an employee's neurodivergence (such as a support worker) to attend formal meetings. However, the appropriate adjustments will always depend on the employee in question and the impact that their neurodiversity has on them. It will therefore be important to discuss adjustments with an employee and seek occupational health advice if necessary.

Making organisations neuroinclusive

Acas provides some recommendations on how organisations can become more neuroinclusive. For example:

• Reviewing recruitment processes: Consider whether changes can be made to the way jobs are advertised, and make adjustments to interview processes
• Providing training and support for managers: Managers should be specifically trained on best practice for managing and supporting neurodivergent employees and handling reasonable adjustments. Consider whether specific training for other groups would also be beneficial; for example, at WBD our employment team has attended expert training on understanding neurodiversity to make us better equipped to advise clients when difficult issues come up
• Raising awareness of neurodiversity: 45% of managers reported a lack of organisational knowledge about neurodiversity in a poll conducted by Acas in November 2024. Neurodiversity should be covered in mandatory organisation-wide training, for example it can be incorporated into broader diversity, equity and inclusion training
• Implementing employee networks: A network can be an important forum for employees to share experiences and support each other. At WBD, our Disability & Neurodiversity Network, supports our neurodivergent and disabled colleagues and clients, for example through initiatives such as our Hidden Disabilities Sunflower membership and through the robust review and development of our policies and processes to achieve Disability Confident Leader status
• Putting in place a neurodiversity policy: Whether this is a standalone policy or part of a broader DEI policy, it is a good idea to have a neurodiversity policy that clearly sets out the organisation's commitment to neuroinclusivity and what support is available. Our experience is that employers typically do not have anything specific on neurodiversity in their HR policies so this may be something to look at next time you do a handbook or policy review
• Neurodivergent employee strengths: Don't forget that neurodivergent employees will also have individual strengths, such as creativity or strategic skills, and enabling them to use these can hugely benefit them, your team, and your organisation.

This can be a tricky area for employers to navigate, but putting the right processes in place can improve employee wellbeing (as well as performance), help an organisation to attract and retain employees with a wider skillset, and ultimately reduce the risk of disputes and legal claims.

If you have any queries on this article or the Acas guidance, please get in touch with the authors or your usual Womble Bond Dickinson contact.