Category: Diversity

Categories
Disability Discrimination Law Diversity Employment Law Equality Act 2010 Lousha Reynolds Neurodiversity Recruitment

Thinking Differently: Why neurodiversity is a workplace superpower

Collaborative meeting in an office around a table

With it being Neurodiversity Celebration Week (16th–20th March), we felt that it was time to move beyond awareness and start talking more about action.

In the UK, it’s estimated that around 1 in 7 people are neurodivergent. This includes ADHD, Autism, Dyslexia, Dyspraxia, and Tourette’s, among others. For too long, recruitment processes and office environments have been designed around the “typical” brain. Often filtering out some of the most creative, analytical, and dedicated talent in the workforce.

From a British employment law perspective, supporting different ways of thinking is not only the right thing to do, but is also a legal requirement. To help business leaders and HR professionals, we’ve focused in on a few things to help better recognise and support neurodiversity at work.

Under the Equality Act 2010, many neurodivergent conditions meet the legal definition of a disability, where that condition has a substantial, adverse impact on the individual’s ability to carry out their normal daily activities. In such cases, this means that employees have a right to protection from discrimination, harassment, and victimisation.

Crucially, employers have a legal duty to make reasonable adjustments. This duty is “proactive,” meaning you shouldn’t wait for an employee to reach a breaking point before offering support. By fostering an environment where adjustments are normalised, you stay ahead of legal risks and, more importantly, help your team thrive.

2. Redefining “reasonable adjustments”

Support doesn’t always mean expensive equipment. Often, the most impactful changes cost nothing but a shift in mindset. Effective adjustments often include:

  • Environmental tweaks: Providing noise-cancelling headphones, adjustable lighting, or quiet zones for deep focus.
  • Communication shifts: Giving instructions in writing rather than just verbally or allowing for camera-off meetings to reduce sensory overload.
  • Flexibility: Allowing for flexible start and end times to avoid the sensory stress of peak-time commutes.

3. Rethinking recruitment

The traditional hour-long, face-to-face interview is often a test of social performance rather than job competency. To support different ways of thinking, we can look at:

  • Skills-based assessments: Letting candidates demonstrate what they can do rather than just what they can say.
  • Clear job descriptions: Removing jargon and fluff (like “must be a great multitasker”) if it isn’t essential to the role.

4. Moving from “culture fit” to “culture enhancement”

In corporate culture, we often talk about culture fit. However, this can inadvertently lead to mini-me hiring, where everyone thinks and acts the same way. 

To truly celebrate neurodiversity, we should look to add to our work culture. A neurodivergent employee might approach a problem from an angle no one else has considered. They might spot patterns others miss or bring a level of hyper-focus that drives a project to completion. Different ways of thinking are a competitive advantage.

How to get involved this Neurodiversity Celebration Week

This week is a fantastic opportunity to kickstart the conversation. You can:

  • Educate: Host a lunch-and-learn or share resources from the Neurodiversity Celebration Week website.
  • Listen: Create a safe space for employees to share their experiences (if they wish) and what support looks like for them.
  • Audit: Review your internal policies, from HR handbooks to your physical office layout, to see if they are inclusive of all brain types.

Neurodiversity isn’t something to be fixed or managed. It’s something to be celebrated. When we design a world that works for neurodivergent people, we inadvertently create a better, more flexible, and more productive workplace for everyone.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

Categories
Anna Denton-Jones Discrimination Law Diversity Employment Law Equality Act 2010 Gender Inclusivity Video

Video | ‘Sex’ under the Equality Act 2010

Royal Courts of Justice, London

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch Anna’s video which discusses the recent ruling from the Scottish case that went to the Supreme Court and has given us a ruling on the meaning of the protected characteristic of ‘sex’ under the Equality Act 2010. This video discusses the potential issues and implications arising from this ruling.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010

The Buckland Review of Autism Employment

View of the British Houses of Parliament from the river Thames, where the Employment Rights Bill is being debated

At the moment only 3 in 10 autistic people of working age are in employment. Robert Buckland, a Conservative MP and Lord Chancellor has conducted a review to report to Government on the issue. What can we learn from it?

  • Estimates are that 1 in 70 people are autistic and if you have numbers in your workforce, you are likely to have autistic people working for you.
  • Autistic people are facing the largest pay gap of all disability groups.
  • It paints a negative picture for people around the experience of recruitment processes. The challenges autistic job seekers face navigating generic job descriptions, interview questions and challenging sensory environments, where often the focus is on somebody’s social skills rather than the actual skills necessary to do the job.
  • Even after finding work, being in employment is a challenge. The Report talks about the lack of adjustments with only 35% of autistic employees being fully open with their employer about their position and 1 in 10 choosing not to disclose to anybody at work. The Report highlights poor knowledge of autism and managers being underprepared to identify and implement adjustments. Often the onus  is being placed on the employee to identify and ask for adjustments rather than the employer taking the initiative and complying with the duty the Equality Act 2010 places on them.

If you want to read more about the Report, here it is: The Buckland Review of Autism Employment: report and recommendations

In terms of recommendations, the Report contains a long list of recommendations and things that are relevant to employers and the practical things they can do. These include nominating buddies and mentors within the workforce, implement training, awareness raising, working with Access to Work (the Government funded department, who can pay up to £1,000 for adaptations in the workplace and up to £3,000 for other support),  offering paid internships for autistic young people, siting employees in a quiet place and not a high traffic area, time out rooms, noise cancelling headphones and adjusting recruitment processes so that they are focused on aptitude based assessments rather than interview questions.

Pick one thing and try and improve that…

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Disability Discrimination Law Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Offer of Employment Reasonable Adjustments Recruitment

Employers making reasonable adjustments in recruitment

View of the City of London at sunset

An applicant for a job who had dyspraxia asked to make an oral job application instead of filling the online form that the employer required. The employer emailed him with repeated requests asking him to explain what his difficulty was with the online process. The individual had difficulty with written communication, indeed that was the reason behind his request in the first place, so he also struggled to deal with these emails. The employer ought to have realised this as they knew about the dyspraxia. The Tribunal ruled that a reasonable employer would have phoned the applicant in order to understand their situation more fully.

A factual quirk of this case is that the applicant was seeking to return to the same team, with the job applications being judged by the same line manager who had dismissed him 8 months previously (failed probation). Understandably, that may have been behind the employer’s reluctance to engage with the individual but what you don’t get to know is to what extent they knew about the dyspraxia during the probationary period and what reasonable adjustments were made at that stage to assist the individual in order to level the playing field and put them into a position where they might have been able to pass the probationary period.

This case illustrates the importance of making reasonable adjustments not only for your own employees such as probationers but for all job applicants. It also illustrates how sometimes the reasonable adjustment is something very cheap and easy to do (a phone call instead of an email) and how as soon as the employer has knowledge there is a disability they should be making adjustments not waiting for the employee to ask.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Bullying and Harassment Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010 Freedom of Speech Gender Inclusivity Video

Video | Employment Tribunal on gender-critical beliefs

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing in detail the recent Employment Tribunal case involving Maya Forstater which centred around gender-critical beliefs and whether she was unfairly discriminated against.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Disability Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010

The widening of disability discrimination

View of the British Houses of Parliament from the river Thames, where the Employment Rights Bill is being debated

In 2010, when the Equality Act was updated, the concept of associative discrimination was enshrined within the legislation as regards direct discrimination. This followed the famous Coleman case, where the protection had been extended to the employee not because of her disability but because she was caring for her disabled child.

Since then, in 2014, a Bulgarian case in the European Court of Justice, Chez Razpredelenie extended the concept of associative discrimination to indirect discrimination.

Reminder: direct discrimination is the idea that because of somebody’s protected characteristic they have been treated in a particular way. That direct discrimination can occur where the reason for less favourable treatment is the protected characteristic of someone with whom the victim associates.

For indirect discrimination to be established under Section 19 of the Equality Act, the Employer is applying some kind of provision criterion or practice to everybody but the Claimant argues that this puts them and those with whom they share a protected characteristic at a particular disadvantage. The employer has the opportunity to defend the case showing it to be a proportionate means to achieving a legitimate aim. Traditionally, this requires the Claimant to have the protected characteristic in question and to suffer the disadvantage personally.

In the Chez case the European Court of Justice held that the protection afforded by the Race Directive which sits behind our law applied irrespective of the ethnic origin of the person who suffered the disadvantage ie: associative indirect discrimination was possible. One of its reasons for doing so was the overarching aim of eliminating all discrimination on ethnic or racial grounds. Thus they were determining that it was sufficient for a person to show that they had suffered a particular advantage alongside a disadvantaged group.

In a recent UK decision of Follows v Nationwide Building Society, Mrs Follows was employed on a Homeworker Contract for around 7 years and the primary reason that she worked from home was to care for her disabled mother. She attended the office 2-3 days a week. She had high ratings in appraisals throughout her employment, including conducting excellent supervision of her team.

Nationwide decided to reduce the number of managers from 12 to 8 and to determine that everyone would have to be office based. The reason that they gave was a greater need for supervision due to a change in the nature of the work and feedback from junior staff who were dissatisfied with the level of supervision provided to them.

Mrs Fellows was put at risk of redundancy and the employer experienced more volunteers than the required reduction in headcount. Mrs Follows didn’t volunteer and wanted to stay in employment but continued to argue that she should retain her existing working from home arrangements. Nationwide it appears approached some of the volunteers for redundancy to request that they stay on but yet dismissed Mrs Follows by reason of redundancy.

Another male colleague, who was not disabled and who was not a carer but also worked from home received the same treatment and was also dismissed.

Mrs Follows brought claims of unfair dismissal, direct and indirect associative discrimination on the grounds of disability, indirect sex discrimination and indirect age discrimination.

The direct discrimination, the disability discrimination claim and the indirect age discrimination claims failed. She was successful in her claim for unfair dismissal, indirect associative discrimination on the grounds of her mother’s disability and indirect sex discrimination. Here we are going to focus on the disability arguments.

The reason why the direct discrimination claim failed was that the correct comparator was her male colleague who wasn’t disabled or a carer – because he received the same treatment as her and was also dismissed, she couldn’t get this claim off the ground. However, the claim of indirect disability discrimination by association was upheld. The Tribunal noted the background with the Chez case and the Tribunal were prepared to read our domestic legislation in the light of the Directive that sits behind it. The requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother’s disability as her principal carer. Nationwide knew of the circumstances and of the disadvantage that Mrs Follows would suffer by its changing requirements.

The legitimate aim relied on by Nationwide was the need to provide more effective onsite supervision and the change in their lending work: given the evidence Mrs Follows’ supervisions were good, the Tribunal felt supervision had to be onsite was itself discriminatory and it couldn’t therefore amount to a legitimate aim. Even if it had been prepared to find that they were legitimate aims it felt that selecting Mrs Follows for redundancy and dismissing her was not proportionate as a means of achieving that legitimate aim, it wasn’t based on any actual evidence or rational judgment, rather it was based on Nationwide’s objective view of dissatisfaction expressed from junior staff together with managers view that the new arrangement would be better. They had also failed to take into account Mrs Follows’ view or her history of excellent supervisory work. It seems that the Tribunal were mindful that Mrs Follows had been attending the office for 3 days a week already and was prepared to continue doing so. It clearly influenced their attitude towards Nationwide being unreasonable.

This case widens the picture of our discrimination law and will be particularly relevant now that we are looking at how we work from home or in the office and hybrid working moving forward.

Whilst the case is at first instance, there is always the opportunity for the Employment Appeal Tribunal to provide more guidance on this subject and employers need to be careful when arguing somebody must return to the office/can’t do their job from home. They must have concrete evidence to rely on to justify their demands.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Discrimination Law Diversity Employment Law Employment Rights Act 1996 Equality Act 2010 Gender Inclusivity Grievance Maternity Parental Rights Protected Characteristics Video

Video | Sending a pregnant worker home

YouTube video playing on a phone

Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that arose in a recent case that went to a Tribunal in Manchester in relation to a company sending a pregnant worker home during the pandemic.

Anna Denton-Jones
Refreshing Law

Categories
Anna Denton-Jones Compensation Constructive Dismissal Disability Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Health Conditions Protected Characteristics

We can learn from a recent disability discrimination case

Royal Courts of Justice, London

Last year, a university law lecturer at BPP University named Elizabeth Aylott was constructively unfairly dismissed and unfavourably treated because of something arising from her disability, despite the fact that other disability related claims were dismissed. She suffered from autistic spectrum disorder, anxiety and depression, which were her disabilities.

A member of the management team talked about her with a colleague and referred to her as a good worker but “mad as a box of frogs”. This comment then got back to her.

She found herself working very long hours including weekends and evenings.

A complaint resulted in a breakdown in the relationship with her employer, in particular, the employer did not allow her to see the complaint or defend herself.

Those three acts were found to be unfavourable treatment, as was the failure to refer her to occupational health.

Other concerns involved a crass and insensitive remark made about how she should have been able to handle her workload – this was inappropriate in the context of what was clearly a poor mental state.

Her employer was found to have failed to reduce her workload or provide extra support or heed any of the indications that she was not coping. Given the numbers of people who are experiencing challenges through the pandemic, you can see how easily an employer can fall into this trap and be found to be guilty of failing to do the right things.

Whenever anybody is complaining of their workload, the hours that they are working or exhibiting other signs that they are suffering from stress and not coping, which could be falling productivity, unusual disengagement or irritability and being more sensitive than normal in relation to normal day to day work related matters, an employer should be considering what they can do to support the employee.

One of the interesting things in this case, is that the employee found a job fairly quickly, so within a 3 month period of her having resigned. However, the Employment Tribunal still awarded her £71,000 worth of compensation for future losses (presumably her new job did not pay as much), £32,000 for past financial losses – so bridging the gap between the jobs, and £20,000 for injury to feelings. The Judge noted that the discriminatory conduct had been integral as to why she chose to resign and that although she had commenced working elsewhere, she remained unwell throughout the period up to the Hearing, when she was able to talk about how the treatment she had received had affected her. This shouldn’t be underestimated.

Managers need to be aware that during a Section 15 of the Equality Act claim that somebody has suffered from discrimination arising from a disability, they need to do the following:

  • Show that their disability causes “something”. That something might be fatigue or more stressed when under pressure or to lose their concentration or not perform as well under pressure.
  • If as a result of that “something” they then receive unfavourable treatment, so that might be performance management, sickness absence management or they aren’t promoted, put forward for training or allocated work, those actions can then be connected back to the disability. The employer has to then show that they are pursuing a legitimate aim and have done so in a proportionate manner when carrying out those actions.
  • For example, it may be that managing absence or attendance at work is a legitimate aim but if the employer has not obtained occupational health advice and has not made real efforts as regards reasonable adjustments, the employer is unlikely to be able to show that their actions were a proportionate means of achieving a legitimate aim.

Anna Denton-Jones
Refreshing Law

Categories
Age Discrimination Anna Denton-Jones Disability Diversity Employment Law Employment Rights Act 1996 Equality Act 2010 Harassment HR Training

The requirement for diversity training

Royal Courts of Justice, London

As if everyone in HR and business is not under enough pressure at the moment, the Employment Appeal Tribunal (EAT), in a case Allay (UK) Ltd v Gehlen has confirmed that it regards training provided 2 years ago on equality and diversity “stale” and ineffective. This was in the context of a racial harassment case. You will be familiar with the idea that in order for an employer to escape liability, if there, is to say that they as employer took all reasonable steps to prevent employees from committing the particular discriminatory act.

It has long been the case that employers present the Tribunal with the fact that the employee protagonist in any harassment case has undergone training and that they have policies of not tolerating such acts of harassment.

If you had asked me to guess how long it took training to become stale and ineffective, I might have said 4-5 years. It is really interesting that the EAT wasn’t going to allow the employer to rely on having given somebody training 2 years ago and suggests that employers are going to need to make some sort of refresher training an annual event. This will of course go for all forms of harassment, so every protected characteristic, not just that of race.

In this particular case, the EAT found that the need for a refresher on a regular basis was amplified by remarks made in the case and the failure of other colleagues to react to the harassment they had witnessed or that had been complained about, and showed the training wasn’t in anyone’s minds. The fact that the protagonist felt that what they had said was just banter was further evidence that the training given had faded from memory and the managers didn’t know what to do when they observed harassment or it was reported to them, suggested that training had also faded from their memories. The particular employer had actually provided further training to the protagonist after the incident so that proved that they also thought further training was necessary, thus the employer couldn’t escape liability.

Having seen a real shift as a result of the MeToo movement, attitudes towards sexual harassment in the workplace and a further big shift as a result of the Black Lives Matter movement means that there is a huge spotlight at the moment over conduct in the workplace and a real sea change in what is expected to be tolerated. It could be that as the generations move into the workforce who are more likely to refuse to accept old norms or tolerate what they see as inappropriate, we see a sea change but for now the employer needs to be driving the change and reinforcing the message whenever it can.

Anna Denton-Jones
Refreshing Law