Evaluating

and supporting
Neurodifferences*
at work
Evaluating
and supporting
Neurodifferences*
at work

March 2022

Authors: Dr Nancy Doyle, Dr Belinda Medhurst

Edited by: Professor Gail Kinman, Professor Almuth McDowall
Editorial board: SOM Occupational Psychology Special Interest Group

ISBN 978-1-3999-2138-1

*Typically includes ADHD, Autism, Dyslexia, Dyspraxia and Tourette’s Syndrome. Also known as
Neurodevelopmental Disorders, Specific Learning Disabilities, Neurominorities, Neurodiversity
Neurodivergence/diversity – see glossary of terms in the appendix.
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Who is this guide for?

Occupational health (OH) practitioners,

Human Resources professionals and
employers, who are considering referring
their staff for a diagnostic assessment of
or services to support ADHD, Autism,
Dyslexia, Dyspraxia, Tourette’s Syndrome
and/or similar.

The document will outline what you could look out for in
staff, different options available for support and legal duties
of employers. We present recommendations informed by
research evidence, the latest guidance from regulatory
bodies, current practice, and case law. The document is
not a literature review or SOM guidance.
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1. WHAT SHOULD OH ADVISE MANAGERS

REGARDING NEURODIVERSITY?
Between 15 and 20% of the workforce is estimated to be in a “neurominority” 1 who are
people whose thinking skills and behaviours are not like the neurotypical norm. The
cognitive hallmark of a neurodifference is often an inconsistency in performance, known
as the ‘spiky profile’. This is when an employee excels at some aspects of their work, but
struggles in others, or can work brilliantly for a time, but who has persistent periods of
productivity loss. There are other hidden disabilities that may cause this, such as Multiple
Sclerosis, Chronic Fatigue and more recently, Long COVID as well as mental ill health such
as anxiety or bipolar disorder.

Either way, it is a flag for an employer that an individual may have a health or
neurodevelopmental condition and may prompt a referral to occupational health
(OH) for support recommendations. Some employers have tended to see inconsistent
performance as an attitude or motivational issue. It is recommended to explore genuine
reasons, as well as training and sufficient role resourcing, before assuming that the
behaviour is wilful and proceeding with some sort of performance management or
punitive process.

More specifically, the following areas of difficulty are typical for neurodifferent
employees2–4:

• Memory/concentration (>90% of neurodifferent (ND) employees experience this)

• Organisation and time management (>75% of ND employees)

• Managing stress (>65%)

• Communicating (>65%) which can include:

» Written communication accuracy

» Written communication speed

» Verbal communication difficulties

» Managing intense emotions

It is easy to see how these are mistaken for incompetence or a negative attitude, but
taking time to give the benefit of the doubt is in line with the Equality Act 2010, which
cites persistent, chronic difficulties in memory, learning and communicating as part of
the definition of disability5.
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It’s important to state that neurominorities also have strengths to balance the struggles.
That’s why it is sometimes considered a diversity rather than an impairment, and why
the language has evolved to be neutral. Below are some of the strengths associated with
various neurodifferences. Please note that there are relatively fewer published studies on
Dyspraxia and Tourette’s Syndrome. This does not mean that these neurotypes confer
less strengths; rather, that there is less research directed to these conditions (by 50:1
when compared to Autism research, despite similar population prevalence)6.

OH professionals can draw on the above evidence to focus on the talent conversation
when liaising with employers and employees. Neurodifferent employees can bring
exceptional abilities, particular specialisms and creativity to their work. We can help flip
the narrative from duty of care to opportunity and potential for advancement. The role
of any OH intervention in this area is to facilitate the employee to work at their best and
bring their strengths to their role.

Neurotype Strengths
Entrepreneurialism7

Creativity and cognitive control8

Dyslexia
Visual reasoning9

Practical skills, visual-spatial skills and story-telling ability10

Dyspraxia High verbal comprehension ability11
Authenticity12
Creative thinking13
ADHD
Visual spatial reasoning ability11

Hyper-focus, passion and courage14

Memory ability, and other ‘specialist individual skills’ including:
Autism Reading, drawing, music and computation15

Innovative thinking and detail observation14

Tourette’s Ability to ‘hyper-focus’16
Syndrome Verbal ability17
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2. HOW SHOULD OH TREAT A MANAGEMENT REFERRAL

IF THERE IS A NEURODIFFERENCE SUSPECTED?
Imagine now that you are an OH professional to whom an employee has been referred
because there have been performance difficulties such as persistent missed deadlines,
and management have asked you for further insight, assessment and potential onward
referral. It can be difficult to broach this subject with an employee who is struggling. You
will need to consider what the employer can offer as support as well as how open the
individual is to a conversation. For example, when an employer has a comprehensive
process for providing adjustments, you could start there:

• “Are you aware that your employer often provides reasonable adjustments for
colleagues who are neurodifferent? For example…”

You might think that it isn’t appropriate to suggest that the person is neurodifferent.
There is no need to have a label to provide recommendations. For example:

• “When I’ve seen employees with this type of specific difficulty before, we’ve tried
XXXX strategy which seems to work well. Would you like to explore this?”

The following adjustments are supported by evaluative evidence3:

• Assistive technology such as voice/text software or dual monitors, with training on

how to implement.

• Flexible hours and remote working options (to reduce sensory overwhelm of
commuting or shared office spaces).

• Environmental flexibility (e.g. a dedicated desk in a quiet space or using quiet spaces
for focused tasks such as booking a meeting room for report writing).

• Coaching to devise specific strategies for managing executive functions and

psychosocial issues.

You can recommend these without a formal diagnosis. A diagnosis is not the only route
to help. There are also several online, free screening tools which you might want to use
with the employee, and you can recommend adjustments while waiting to see if more
specialist advice is required, if the situation isn’t urgent.
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If you judge that a diagnosis is the right avenue for the situation, OH practitioners could
broach the subject like this:

• “I notice that you excel at XYZ, but often struggle with ABC. This sometimes indicates
neurodifferences, would you like support to explore that further?”

It is important to note that only management can make the initial decision as to whether
they feel your recommendations for adjustments are reasonable.

A final decision on reasonableness can only be made in a court of law. However, if there
is a legal dispute, your recommendations are likely to be evaluated and assessed in a
tribunal hearing and therefore it is recommended that you seek referral to a specialist if
you feel out of your depth.
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3. WHEN SHOULD OH RECOMMEND

A DIAGNOSTIC ASSESSMENT?
In many organisations, formal diagnosis is required before any adjustments are made
(a ‘gatekeeping’ approach). However, diagnosis is expensive and may take a few weeks/
months, meanwhile performance and relationships suffer. For day-to-day performance
issues, a ‘stepped approach’ is recommended, as follows:

1. Upon identification of need or informal self-diagnosis, an initial screening

conversation to ascertain if there are any adjustment strategy options already
available, such as remote working, technology and coaching. This could be done
using an online screening tool or checklist, with a manager, HR, or with a generalist
OH professional interview.

2. If this is insufficient to improve performance, escalate to a specialist review, which

can be done remotely.

3. If this is insufficient, escalate to a workplace needs assessment, in situ, so that

the environment can be assessed as well as the individual. These should include
interviews with both employee and employer.

4. If this is insufficient and a diagnosis has not been formally made, then a diagnosis
would be recommended at this point, to find out if there are any other underlying
conditions contributing.

The irony of the gatekeeping approach is that the adjustment costs could be less than
the cost of the assessment! However, you should skip straight to the workplace needs
or diagnostic assessment if there is imminent risk of job loss or if under performance
is risking safety in any way: a stepped approach should not be used to delay or avoid
meeting the needs of disabled employees. The OH role here is to assess the urgency and
severity, and to be empowered to make simple adjustment recommendations within
remit, rather than to feel no action can be taken until further specialised assessment is
complete.

The most important thing to remember is that you do not need a diagnosis for the
Equality Act to apply, only evidence that the individual’s difficulties are chronic and
substantial (affecting normal day-to-day activities) and long-term (difficulties spanning a
period of 12 months or more). There are links to Case Law examples provided at the end
of this document, which show how difficult it is to assert that an individual has no right
to Equality Act protection without a diagnosis. Beyond diagnosis, there is reasonable
consistency suggesting that neurominorities are likely to sufficiently justify Equality Act
protection as disabilities. Therefore, it is also reasonable to assume that a suspected
neurominority will require reasonable adjustments until proven otherwise.
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Neurominorities experience typical everyday difficulties in memory, communication

(written or verbal) and learning; these are likely to be the basis for asserting disability
as a protected characteristic. OH should never report categorically that an employee is
or is not disabled within the Equality Act definition, since that is a legal not a medical
question, but should advise the employer with consent whether the employee has an
impairment which is long term and has a substantial adverse effect on normal day to day
activities. It is acceptable to report that it is likely/unlikely that they are disabled.

If funds are limited, it may be better to avoid a formal diagnosis and accept self-
diagnosis and performance difficulties at face value. Instead, you can conduct or
request a specialist workplace need assessment (WPNA). A WPNA cross references the
particular aspects of performance difficulty (as presented by employee and employer)
with potential adjustments (such as technology, flexible hours, coaching) and makes
recommendations. The Equality Act requires us to do due diligence in exploring all
possible, affordable adjustments before determining that the individual cannot deliver
the job role; this is how “reasonable” is defined. There is obviously less expectation on
smaller businesses with smaller budgets, so use your discretion to consider whether you
can make recommendations yourself or whether you need to bring in more expertise.

With neurominorities, change and transitions can take longer to bed in, so be sure to
give any new adjustments time to work, before deciding whether they were adequate.
Four to 12 weeks is recommended as best practice, depending on context, though this
has not been legally or academically challenged. So, again, management discretion will
apply here.

Also be very careful about interpreting management reports of performance. If reports

are based on subjective, single manager assessments it can be open to abuse and
discrimination. It is easy to discriminate against people who communicate differently,
and to make assumptions about them. This is a major legal risk. If you are unsure about
this, a viable recommendation is co-coaching, where both manager and employee are
coached at the same time, or team training to build awareness.

However, If the assessment and adjustment process is genuine, thorough, and includes
referral to appropriate specialists, it is likely to be considered sufficient in any legal
dispute. Outplacement counselling (a process to help employees find their next role
when they exit) or offering alternative roles can be considered if the adjustments process
does not result in performance improvement.
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4. HOW SHOULD OH RECOMMEND COMMISSIONING

A SERVICE FROM A SPECIALIST?
1. REGULATION. You need to ensure that a diagnostic professional is appropriately
registered with the HCPC, the GMC or PATOSS. Both the BPS and SASC provide
regular updates on conducting assessments for neurominorities, these can
be checked and referred to if you are not sure18. Approach the same way you
would for any other commission – check insurance, GDPR, ICO registration etc.
Anyone providing must be appropriately trained and certified in using the testing
equipment, for example Psychologists must be on the Register of Qualified Test Users
for using psychometric tools and have undertaken additional training for specialist
assessment tools such as those for ADHD/Autism. Psychiatrists are needed to
recommend medication for ADHD, this cannot be done by a psychologist or teacher.
Psychologists, OH and teachers should also be referring to appropriate medical/
clinical support when conditions such as Bipolar Disorder, brain injury or trauma are
suspected or disclosed.

2. UNREGULATED PROVIDERS. There are no guidelines or limits on who can

provide workplace needs assessments, coaching and awareness training, but OH
professionals are advised to apply caution when referring to suppliers here. For
example, those who assert coaching expertise without coaching qualifications
may not provide an adequate service and there is no recourse to complaint for
unregistered operatives. Question the governance, experience and training of
anyone you are recommending. Check how they present the effectiveness of their
services, whether they rely on anecdotal reports only or have a more rigorous
method of quality assurance. When recommending assistive technology trainers,
the British Assistive Technology Association keeps a list of possible suppliers. Should
specialist referral recommendations ever be reviewed in a court setting, would
they stand up to scrutiny? The courts use the ‘man on the Clapham omnibus’ test
to determine if a person was an appropriate expert – i.e. does the specialist you are
taking advice from have enough credibility that an ordinary person on a bus would
recognise them as such?
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3. CREDIBILITY. The specialist/specialist company need to have appropriate workplace

experience. If you, as an employer or employer’s representative, are commissioning
a report/service, will it be adult appropriate? Will it be workplace contextualised
rather than purely educational or clinical? Consider if those offering HR consulting
and awareness training have management or HR credentials, such as being a
member of the Chartered Institute of Personnel and Development, and can offer
legally contextualised advice on adjustments and policy. Ensure that the professional
has appropriate training in and/or experience of the OH and human resources
implications for their analysis, enough to understand the employment implications
of the diagnosis and make appropriate signposting.

4. PSYCHOLOGICAL SAFETY. When an employer is requiring an assessment or

coaching, the individual can feel obliged to submit to scrutiny to retain their job.
It’s very important that the professional knows how to tread the line with client
confidentiality and supporting vulnerable people during an identity changing
process. Like any consumer process, remember you can ask to “try before you buy”
and review an example assessment report. You can arrange a “chemistry session” for
the employee and their assessor if they are nervous, to ensure a positive experience.
You can ask for explanations and changes if you need more detail or an explanation
of terms. For example, Psychologists should be available to ask questions that
come up in preparation or follow up to a diagnosis; the assessment and report are
not single events, they are part of process. Coaches should be providing notes for
employees and can be asked to summarise reports to employers, with permission
from employees. Records are important in coaching for disability support in case
there is a need to evaluate the employer’s adjustment provision in a Court of Law.

5. PAYMENT. There is no fixed guidance on who should pay for the report, if disability
eligibility is disputed. However, given that Case Law is reasonably consistent that
Equality Act provision applies to neurominorities, it is advisable that an employer
should pay to minimise the risk of later being found in breach of duty and show that
they have operated in good faith towards the employee. However, as above, the cost
of most reasonable adjustments is low, so it is potentially better to direct employers
with limited funds to solving the problem rather
than naming it.
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5. DATA AND CONSENT

Seeking an expert report is no different to any other medical referral in that an employee
must provide consent and the Data Protection Act applies. The employee must give
consent (common law) to be examined by the expert and for the report to be disclosed
to OH. Consent should ideally be written for reasons of evidence, though oral consent
is valid if properly recorded and documented by the practitioner. Good governance is
essential for any specialist provider; for example, check that they are registered with the
Information Commissioner’s Office and have sound policies on data, confidentiality,
complaints, and quality assurance accreditation such as the British Standards Institute for
technology or quality management.

Once the referral is made, the specialist assessor will be beholden to their own standards
around data and consent, which may mean they are unable to share full results with OH.
In most cases, OH and the specialist will share some details as part of the OH care being
provided; however, this does not extend to employers. OH need consent under common
law and the Data Protection Act 2018 to report to the employer (health professionals also
have an ethical duty of confidence). Psychologists are also bound by their professional
practice guidance, and regulated by the Health and Care Professionals Council.

Summary reports, following Caldicott principles19, are recommended which state that
information should only be shared with who ‘needs to know’. For example, an assessor
should give the client first sight of the report and talking it through if needs be, before
sending an abridged version to you. You don’t need their raw scores or IQ scores any
more than you would need to review an MRI scan in detail if a medical practitioner told
you someone had a tumour or receive detailed notes on traumatic experiences if a
mental health professional confirmed a diagnosis of PTSD.

Restrictions on report details is recommended best practice from the British

Psychological Society in assessment of adults20,21. The BPS guidelines are clear that an end
user is the ‘client’, irrespective of who is funding the assessment. As such, consent can be
withdrawn on the part of the employee at any time, so it is important to establish good
relationships as above. An employee may not wish for their employer to be informed of
their diagnosis; this is also within the boundaries of their rights. However, you can still
provide useful recommendations on adjustments, which may alleviate performance
concerns.
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6. FURTHER RESOURCES

ADHD Foundation

National Autistic Society

British Dyslexia Association

Dyspraxia Foundation

Tourette’s Action

Find a Psychologist

Find a specialist teacher

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REFERENCES
1. Doyle N. Neurodiversity at Work: a biopsychosocial model and the impact on
working adults. Br Med Bull. 2020;(135):1-18.

2. CIPD. Neurodiversity at Work. London; 2018. https://www.cipd.co.uk/Images/

neurodiversity-at-work_2018_tcm18-37852.pdf

3. Doyle N. Neurodiversity at Work. In: BPS, ed. Psychology At Work:Improving Wellbeing

and Productivity in the Workplace. Leicester: British Psychological Society; 2017:44-62.
doi:ISBN 978-1-85433-754-2

4. BDF. Neurodiversity Toolkit. London, UK; 2020.

https://businessdisabilityforum.org.uk/knowledge-hub/toolkits/neurodiversity-toolkit/

5. United Kingdom Parliament. Equality Act. United Kingdom; 2010. http://www.

legislation.gov.uk/ukpga/2010/15/introduction

6. Doyle N, McDowall A. Diamond in the rough? An ‘empty review’ of research into

‘neurodiversity’ and a road map for developing the inclusion agenda. Equal Divers
Incl An Int J. 2021;0(0).

7. Logan J. Dyslexic entrepreneurs: the incidence; their coping strategies and their
business skills. Dyslexia. 2009;15(4):328-346.

8. Leather C, Hogh H, Seiss E, Everatt J. Cognitive functioning and work success in adults
with dyslexia. Dyslexia. 2011;17(4):327-338. doi:10.1002/dys.441

9. von Karolyi C, Winner E, Gray W, Sherman GF. Dyslexia linked to talent: Global visual-
spatial ability. Brain Lang. 2003;85(3):427-431.

10. Eide B, Eide F. The Dyslexic Advantage. New York, NY: Plume; 2011.

11. Grant D. The Psychological Assessment of Neurodiversity. In: Pollak D, ed.

Neurodiversity in Higher Education. Chichester, UK: Wiley-Blackwell; 2009:33-62.

12. Sedgwick JA, Merwood A, Asherson P. The positive aspects of attention deficit
hyperactivity disorder : a qualitative investigation of successful adults with ADHD.
2019:241-253.

13. White HA, Shah P. Uninhibited imaginations: Creativity in adults with Attention-
Deficit/Hyperactivity Disorder. Pers Individ Dif. 2006;40(6):1121-1131. doi:10.1016/j.
paid.2005.11.007
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14. Armstrong T. The Power of Neurodiversity. Cambridge, MA: De Capo; 2010.

15. Meilleur AAS, Jelenic P, Mottron L. Prevalence of Clinically and Empirically Defined
Talents and Strengths in Autism. J Autism Dev Disord. 2015;45(5):1354-1367.
doi:10.1007/s10803-014-2296-2

16. Averns D, Jakubec SL, Thomas R, Link A. Working With Uniqueness: Optimizing
Vocational Strengths for People With Tourette Syndrome and Co-Morbidities.
Procedia - Soc Behav Sci. 2012;47(2000):1426-1435. doi://dx.doi.org/10.1016/j.
sbspro.2012.06.837

17. Dye C. A verbal strength in children with Tourette syndrome? Evidence from a non-
word repetition task. Brain Lang. 2016;160:61.

18. SASC. Format for a Post-16 Diagnostic Assessment Report for Specific Learning
Difficulties. London, UK; 2021. https://www.sasc.org.uk/Downloads.aspx

19. NDG. The Eight Caldicott Principles. London, UK; 2020. https://assets.publishing.
service.gov.uk/government/uploads/system/uploads/attachment_data/file/942217/
Eight_Caldicott_Principles_08.12.20.pdf

20. BPS. Practice Guidelines - Third Edition. Br Psychol Soc. 2017;(August):1-89. https://
www.bps.org.uk/sites/bps.org.uk/files/Policy - Files/BPS Practice Guidelines (Third
Edition).pdf

21. McLoughlin D, Doyle N. The Psychological Assessment of Adults with Specific

Performance Difficulties at Work. Leicester: British Psychological Society; 2013.
https://www.bps.org.uk/sites/bps.org.uk/files/Policy/Policy - Files/DOP Psychological
Assessment of Adults with Specific Difficulties.pdf

22. Singer J. “Why can’t you be normal for once in your life?” From a problem with no
name to the emergence of a new category of difference. In: Corker M, French S, eds.
Disability Discourse. Buckingham, UK: Open University Press; 1999:59-67
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APPENDIX 1: GLOSSARY
The following glossary of terms in current use is subject to the caveat that terms evolve and change
as part of the developing biopsychosocial understanding of neurodiversity. Neurominorities bear the
hallmark of a human rights movement, and as with similar movements such as the Deaf community
and LGBTQIA2S+, they assert the right to define their nomenclature. Just as we expect to maintain
awareness and educate ourselves on the preferred terms of other protected conditions, we need
to with neurodiversity. And, just as some women select the term Lesbian, Gay woman or Queer
woman, there is disagreement within the Neurodiversity community as to which terms are best. OH
practitioners are advised to enquire as to language preferences where appropriate, defer to individual
choice and caveat written documents as we have done here. OH practitioners are also advised to listen
for and learn updated language preferences and new terms as they emerge. If you use a term that
someone doesn’t like, just with any other protected condition, it is appropriate to apologise, correct
your speech and move on. Feeling nervous about getting it wrong is natural, but an honest attempt
and a quick pivot where needed should facilitate positive conversations in most interactions.

Term Rationale

Condition first Though the person-first language, developed in the 80s and 90s was
language designed to draw attention to the humanity of disabled people, it is no
(i.e. disabled people longer in vogue. The current preference elicits the social model, in that
rather than people with people are disabled by their environment, rather than a disability being
disabilities) something you have at the individual level.

As opposed to Disorder. Though many experience their difference as

disorder, we should avoid making assumptions of deficit and distress,
Condition or difference mindful that our position as professional will be pivotal in framing the
experience of those with whom we work. When we frame in the negative,
this can be self-fulfilling for those who are in our care.

As opposed to Autistic Spectrum Disorder, Asperger’s, on the spectrum

Autism/Autistic/Autist or any other variation, this phrase is preferred though many people still
identify as Asperger’s or Aspie.

As opposed to “person with dys*”. The term Developmental Coordination

Dyslexic, Dyspraxic,
Disorder (or DCD) is referred to as an alternative to Dypraxia, however
Dyscalculic, Dyspraphic
Dyspraxic people prefer the term Dyspraxia.

These conditions are not easy to take out of person-first language,

ADHDer/Touretter however some people with lived experience use these adaptations, others
may continue to use person with ADHD/Tourette’s.
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Term Rationale

Neurodiversity A feature of the whole species and not a synonym for disability.22

An umbrella term. These are more frequently chosen in place of Specific

Learning Disabilities (SpLD) or Neurodevelopmental Disorders for the
same reason as the use of condition vs disorder, i.e. to infer neutrality and
create space for a balanced narrative. Additionally, unpublished research
Neurominority/ conducted by the British Psychological Society’s (BPS) Neurodiversity
neurodifferences Working Group in 2015 and 2019 found that the older terms were
preferred by less than 10% of those with lived experience (2015, N=115;
2019, N=267). This survey is currently being repeated and will be
published, so you can stay up to date on evolving language by research
and checking with professional bodies and charities.
To refer to an individual, referring to the diversity at the individual level
Neurodiverse (/ within the spiky profile. This term is not favoured by all, in particular the
neurodifferent) BPS survey indicated that Autistic people and those from USA/Australia do
not identify with this term.
To refer to an individual, noting the divergence from neurotypicality.
Neurodivergent
This term is also sometimes contentious, potentially favoured by ADHD/
(/neurodifferent)
Dyslexic communities.
Person with learning In learning disability communities those with lived experience still prefer
disabilities the person-first language.

Used instead of high/low functioning, a phrase has been used to separate

Autistic people in to two categories, typically those with or without
cooccurring Learning Disability. The phrase has been widely criticised for
framing “functioning” from the neuronormative position and minimising
Low/High/Additional
the human value of those with lower IQs. Additionally, it does not take
needs
into account the distress experienced by Autistics with high IQ who “mask”
in order to pass for “functioning” and experience high rates of mental ill
health and suicide. Use of the word “need” centres the individual rather
than the role they play and is therefore more respectful.
Similarly to the Deaf community and Black community, where the
capitalisation denotes respect and acknowledgement of a group identity
Capitalisation
that has been marginalised, the capitalisation of Autism, Dyslexia etc.
serves to reinforce the autonomy and formal assertion of culture.
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APPENDIX 2: CASE LAW EXAMPLES

The following accounts relate to employment tribunal (appeal) cases where the claimant has made
an appeal against an employer as a consequence of disability discrimination. The full report of these
judgements can be found on the government website (please follow the links).

1. Employment Tribunal Decisions: Disability Discrimination

Cases 1-3 are employment tribunals. It is important to note that these are not precedents but
examples which may or may not be upheld.

Case 1

Mr. P McQueen v General Optical Council

• Mr McQueen disclosed his neurodifferences when appointed with General Optical

Council and adjustments were put in place for some of these such as his dyslexia.

• However, the appeal found General Optical Council failed to make reasonable
adjustments for Mr McQueen’s Asperger’s Syndrome, or even whether he did have
Asperger’s Syndrome.

• They could not ‘get to grips with’ the assertion that Mr McQueen had Asperger’s as a
reason for his conduct at work, or for raging when asked to do a task. This appeal was
upheld as Mr McQueen’s managers and then HR failed in their duty.

https://www.gov.uk/employment-tribunal-decisions/mr-p-mcqueen-v-general-optical-
council-2200667-2019

Case 2

Mr R Pearce Thomas v Pembrokeshire County Council

• This case considers whether a claimant has a disability as described under the Equality
Act 2010.

• Mr Pearce ticked a box on application for his job, stating that he did not have a
disability and did not declare his disabilities. He also told his employers that his
difficulties were ‘mild’.
19 E VA LUAT I N G A N D S U P P O R T I N G N E U R O D I F F E R E N C E S AT W O R K

• Mr Pearce had previous diagnoses of dyspraxia/DCD alongside autism, which had been
assessed during his childhood. Mr Pearce experienced stress and anxiety soon after
starting his job.

• The respondent therefore felt that Mr Pearce did not have a disability under the
Equality Act as they felt his difficulties were not long term or significant and that his
stress and anxiety were not a consequence of any underlying difficulties/disorders.

• The tribunal concluded this was a consequence of his disability as described under the
Act. This was seen as regardless of the diagnoses.

https://www.gov.uk/employment-tribunal-decisions/mr-r-pearce-thomas-v-
pembrokeshire-county-council-1600642-slash-2020

Case 3

Mr T Cox v Lancashire County Council

• Mr Cox had been employed by the respondent for over 10 years before a formal
diagnosis of Asperger’s Syndrome was made. During this time, he had been subject to
many complaints, warnings and delayed hearings which caused him much stress.

• Mr Cox finally agreed to an assessment for autism as his son had undergone some
assessments for ASD. His employers appeared aware of these issues but had failed to
put in place support for these difficulties.

• The tribunal found that the respondent that was content to ‘stick its head in the sand’
about a disability that had been apparent for many years and Mr Cox had to seek a
diagnosis at considerable personal expense. Only then did the respondent pay any
attention to this issue and seemed extremely reluctant to properly assess Mr Cox’s
needs and failed to make any reasonable adjustments.

https://assets.publishing.service.gov.uk/media/6102874ed3bf7f044c5159e1/Mr_T_Cox_v_
Lancashire_County_Council_-_2402124_2019___2404795_2019.pdf
20 E VA LUAT I N G A N D S U P P O R T I N G N E U R O D I F F E R E N C E S AT W O R K

2. Employment Tribunal Appeals

Cases 4-6 are illustrations of Employment Tribunal Appeals (ETA) which can be used as
precedents in law.

Case 4

Elliott v Dorset County Council

• This ETA was based on the ET that the claimant – Mr Elliott – did not experience a
disability under the Equality Act, despite his diagnosis on the autistic spectrum, as the
panel deemed his difficulties did not have a “substantial” adverse impact on his ability
to carry out day-to-day activities.

• ET erred in law by not sufficiently identifying the day-to-day activities that Mr Elliot
could not do, or could only do with difficulty, to find a proper analysis; further, the ET
excessively focused on coping strategies which Mr Elliott made for himself, without
considering whether any coping strategies might break down in certain circumstances.

• The ET excessively relied upon comparison of Mr Elliott with the general population.
They therefore did not apply the statutory definition of “substantial” as more than minor
or trivial and the case was referred for fresh ET for a full reconsideration.

http://www.bailii.org/uk/cases/UKEAT/2021/0197_20_0904.html

Case 5

British Telecommunications plc v Meier

• This appeal by BT was dismissed by the ETA; It agreed with the original decision of the
ET that BT discriminated against a man who applied for a graduate post by failing to
make reasonable adjustments for his disability.

• Mr Meier had to sit a Situational Strength Test (SST) as part of the application for a post
and was not allowed any adjustments for this process, and the recruiter failed to have a
conversation with Mr Meier until after the test.
21 E VA LUAT I N G A N D S U P P O R T I N G N E U R O D I F F E R E N C E S AT W O R K

• The Tribunal further held that BT did not take any steps to consider whether any
information in the monitoring form was relevant to its commitment to plan for and
make reasonable adjustments to the assessment and interview process and said that
BT knew or ought reasonably to have known that the claimant was disabled and that
his disability was placing him at a substantial disadvantage.

https://www.bailii.org/nie/cases/NICA/2019/43.html

Case 6

Government Legal Service v Brookes

• Ms Brookes applied for a training contract with Government Legal Services (GLS). She
has Asperger’s syndrome. The first stage of the GLS recruitment process involves a
Situational Judgement Test (SJT).

• Despite informing the recruiter about her condition, GLS failed to allow Ms Brookes
adjustments for this test, although they allowed extra time. Ms Brookes asked if she
could provide short written answers to questions, but GLS refused. Consequently, Ms
Brookes failed the pass mark of the SJT by 2 points.

• The ETA found that Ms Brookes Asperger’s would place her under additional difficulty
due to the multiple-choice format of the SJT.

• Ms Brookes brought claims of indirect disability discrimination, failure to make

reasonable adjustments and disability-related discrimination. A tribunal upheld all her
claims and recommended that the GLS should say sorry (in writing) and review its
procedures in relation to people with a disability. GLS appealed - unsuccessfully.

http://www.bailii.org/uk/cases/UKEAT/2017/0302_16_2803.html
ISBN 978-1-3999-2138-1

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