Contributors
One in four UK construction workers are neurodivergent, according to a report by the National Federation of Builders (NFB).
In fact, the NFB says it has "discovered that neurodiversity is not only common amongst construction workers, but being neurodiverse is actually encouraging people to pursue a career in construction".
This has opened up constructive conversations in the sector around employing and supporting a neurodiverse workforce.
What is neurodiversity?
Neurodiversity Celebration Week takes place every March, and the Neurodiversity Celebration Week website explains that "neurodiversity refers to a world where neurological differences are recognised and respected as all other human variations. Depending on how our brains are wired we think, move, process information and communicate in different ways. Many people in our community use neurodiversity as an umbrella term used to describe alternative thinking styles such as Dyslexia, DCD (Dyspraxia), Dyscalculia, Autism and ADHD. But regardless of labels, neurodiversity is about recognising those who think differently."
Essentially, neurodiversity encompasses a wide range of neurological differences that are unique to each person. Some neurodivergent individuals may have exceptional abilities in certain areas, like pattern recognition, problem solving, memory, or creativity, while they may face challenges in others.
What are the benefits of a neurodiverse workforce?
In the workplace, embracing neurodiversity can drive innovation, productivity and profitability, as well as contributing to an inclusive culture where workforce retention is higher.
For the construction industry in particular, attracting neurodivergent workers could help fill a skills and labour shortage, which the industry has been struggling with for years.
However, neurodivergent individuals can face discrimination and exclusion. 2023 saw a rise in UK employment tribunal cases relating to neurodiversity. Learning from these is crucial for businesses, to ensure compliance and foster neuro-inclusive work environments, while avoiding risk and damage to its business and reputation.
The legal framework and neurodiversity
Neurodivergence in the UK may not always be classified as a disability under the Equality Act 2010, but it is often recognised as such. That Act states that a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This can include neurodivergent traits, like those relating to social interaction and communication. The Employment Tribunal concentrates on the impact of the condition, rather than its precise medical diagnosis.
If someone falls within this definition of disability, it is unlawful for an employer to discriminate against them. This includes treating them less favourably due to their disability, subjecting them to harassment, failing to make reasonable adjustments, or victimising them for raising concerns about disability discrimination. Neurodivergent individuals do not need a formal diagnosis or to have disclosed any formal diagnosis to be protected.
However, employers can only be held liable for discrimination arising from disability or failure to make reasonable adjustments if they were, or should have been, aware of the employee's disability. Conditions like Autism and ADHD are often called "non-visible" disabilities, as they may not be immediately apparent, and the employee may not disclose them or may "mask" them (which is entirely within their rights). That said, employers may be expected to have knowledge of a disability if there were indications there may be one and they did not investigate.
Additionally, neurodivergence is often associated with mental health conditions like anxiety and depression, which can themselves fall within the definition of disability.
Key takeaways from four recent neurodiversity cases
Here are a few important cases over the last 12 months, which businesses should be aware of. While these cases are not construction-specific, as with most employment law cases, the scenarios outlined can occur across most businesses:
Employers must make reasonable adjustments
In AECOM v Mallon, the employer failed to make reasonable adjustments for a job applicant with dyspraxia. The applicant had repeatedly asked to make his application orally, rather than by an online form, as he had difficulties expressing his thoughts in writing due to his condition and was anxious about the online form process. The employer insisted on him explaining his specific difficulties with the online form via email. The Employment Appeal Tribunal ruled that the employer should have made reasonable enquiries about the extent of the applicant's difficulties and should have called him to facilitate his application, given his problems with written communication.
Key takeaway - if there are indications that there may be a disability, make enquiries and understand if, and to what extent, there is an obligation to make reasonable adjustments. When making enquiries, consider whether adjustments to the method of communication are necessary.
Employers should consider reasonable adjustments and avoid contacting relatives without employee consent
In Duncan v Fujitsu Services, the Employment Tribunal ruled that the employer failed to make reasonable adjustments for an autistic employee who had difficulties with oral communication. The employment tribunal held that it would have been a reasonable adjustment to allow the employee to communicate primarily in writing, not require him to call in when sick, and provide a written agenda before meetings. The employee also won a harassment claim concerning the employer's decision to discuss his sickness absence with his mother without his consent, in violation of data privacy law.
Key takeaway - while it might be appropriate in certain situations to contact a relative without consent, it is advisable to clearly outline this in a policy and, where possible, agree on this with the individual in advance.
Employers must make reasonable adjustments to remove substantial disadvantages
In Rackham v Judicial Appointments Commission, the Employment Tribunal highlighted the fact-specific nature of these cases and said employers can reasonably refuse adjustments that would compromise essential aspects of the selection process. The claimant's Autism Spectrum Disorder and Asperger’s Syndrome made one-to-one communication and dealing with hypothetical situations challenging for him. However, the Tribunal ruled that it was not a reasonable adjustment to simplify the written questions in a skills test for a judicial role or allow the claimant to complete a practical task instead. This is because the questions were designed to reflect the role's requirements.
The claimant had been given extra time to complete the test with the assistance of someone he knew and was allowed to submit his answers offline or by email. The Tribunal also ruled that it was not reasonable to require the employer to provide a trained autism facilitator to assist the claimant. Finally, the Tribunal noted that the test had been reviewed by the employer’s Diversity and Engagement Team to ensure it was effective and did not disadvantage disabled individuals.
Key takeaway – a reminder that where an employer uses tests and assessments as part of a recruitment process, it must make reasonable adjustments to them to remove any substantial disadvantage faced by disabled candidates.
Employers should obtain appropriate medical advice
In McQueen v General Optical Council, an employee with autism was disciplined for rude and aggressive behaviour. The Employment Tribunal determined that this was due to his short temper or personality, rather than his disability. This conclusion was upheld on appeal. However, it is important to approach this aspect of the decision with caution, as other cases have highlighted that only a loose connection is required between the "something" leading to the unfavourable treatment and the disability in a "discrimination arising from disability" claim. While the principal claim was dismissed, the employee's victimisation claim succeeded due to his employer's mishandling of his grievance.
Key takeaway - employers should get appropriate medical advice and consider any necessary adjustments to working practices to support colleagues. This should help to alleviate the risks of challenging behaviour, prevent the risk of discrimination occurring, and provide the employer with evidence and a defence if they find themselves involved in a claim.
As disputes increase, courts are also themselves demonstrating heightened sensitivity towards the needs of neurodivergent individuals involved in Employment Tribunal processes. These tribunals have specific guidelines to support vulnerable witnesses and parties, but we are also seeing changes in how they are supporting neurodivergent parties, ranging from allowing a rehearing so that a dyslexic witness was not disadvantaged, to granting permission to bring an assistance dog.
A change in how we think
As awareness around neurodiversity grows, particularly in light of the potential number of neurodivergent individuals in the construction industry, and because neurodivergent employees are likely to be classified as disabled under discrimination law, employers need to rethink how they manage and support their workforce.
Over the past few years, there has also been an increased focus in the construction industry on mental health support – and this is particularly helpful for neurodivergent individuals who often have to mask to fit into a workplace designed by and for neurotypical people.
- Making simple changes like sharing meeting agendas in advance
- Allowing safe spaces for discussion, through employee networks or other groups
- Providing quiet breakout rooms and areas
- Ensuring robust occupational health support
- Reviewing recruitment processes to ensure they are accessible, inclusive and not discriminatory
- Reviewing and implementing HR policies that support neurodiversity including on reasonable adjustments, performance management, sickness, and flexible working
- Training and education, particularly for management and HR teams.
Michelle Essen is a Legal Director in Womble Bond Dickinson's (WBD) Construction team, and Emily Cox an Associate in WBD's Employment team. Michelle chairs the WBD Disability Network, and Emily plays a key role in the Network by leading on neurodiversity.
WBD marks Neurodiversity Celebration Week each year and supports its disabled and neurodivergent colleagues in many different ways. Find out more about their neurodiversity celebrations this year here.
