Neurodiversity at Work.

On 31 January 2025, Acas published new advice on neurodiversity at work. Their stated intention is to raise awareness and encourage inclusivity. The advice also includes important guidance intended to prevent unlawful discrimination, and therefore attendant liability for employers – which is a useful marker, and should be considered, but with the following caveats:

1. There are some technical inaccuracies.
2. Some examples of workplace scenarios are over-simplified.
3. The Acas guidance is no substitute for specialist legal advice.

Acas uses the term "neurodiverse" to describe the natural differences in how people's brains behave and process information and "neurodivergent" to describe someone whose brain works differently to what is considered more typical.

Common types of neurodivergence include ADHD, autism, dyslexia, dyspraxia, dyscalculia and Tourette's syndrome.

Some neurodivergent people do not see themselves as disabled, but being neurodivergent may amount to a disability under the Equality Act 2010. Acas acknowledge that many employees will not disclose to their employer that they are neurodivergent and may mask their condition due to concerns about a negative reaction.

Where an employer suspects that an employee is neurodivergent, Acas advises that it should approach the situation sensitively, not ask directly about the employee's condition and focus on any reasonable adjustments that might help to support them - whether or not they have a diagnosis for neurodivergence. Appropriate reasonable adjustments will vary as people often experience neurodivergence differently.

Acas also gives practical advice on how to manage capability or conduct concerns for neurodivergent employees.

Somewhat misleadingly, however, Acas asserts that “performance” can relate to either conduct (i.e. an employee's behaviour at work) or capability (i.e. an employee's ability to do their job) – when conduct (which, yes, is based on deliberate behaviour) and performance (which is properly classified as a capability issue) are two different things.

Acas’s advice is further misleading in stating that a matter is usually a conduct issue if the employee has control over their actions, whilst it will usually be a capability issue if the employee has no control over it “for example, if an employee becomes unable to do their job due to an illness or disability, and adjustments or support could not help”. It is also important, in fact, to draw a distinction between issues of medical capability (which is where an employee’s ability to perform their job is affected by health-related factors, such neurodiversity) and performance capability (which is where an employee does not perform to the required standard because of a lack of attention or ability, which does not have any medical cause).

Acas are right to advise that before instigating any kind of formal (and, indeed, we would say also informal) procedure relating to conduct or performance with a neuro-diverse employee (or any other employee who has, or might have, a disability within the meaning of the Equality Act), an employer should first ensure that they have explored reasonable adjustments – but that is only part of the equation. The starting point is for the employer to take reasonable steps – including through the obtaining of medical evidence, where appropriate – to establish whether the medical condition is likely to have caused or contributed to the issue and, if so, whether all relevant reasonable adjustments had been made. This will be key to determining whether it is appropriate to treat the matter as a conduct issue (and, if so, then what action will be proportionate if the allegation of misconduct is upheld), performance capability, or medical capability.

A useful example provided by Acas is of an employee with ADHD who is missing deadlines. The employee asks for a quiet space to work and regular check-ins to support with time management. The employer agrees to the employee using a meeting room when it is available, provides noise-cancelling headphones and introduces weekly meetings to check that work is on track. The employee’s performance then improves.

Had the employer in that example instead implemented a performance capability procedure, it would have been vulnerable to claims for a failure to make reasonable adjustments and discrimination by reason of something arising from a disability.

A less useful, and potentially misleading, example given by Acas is of an autistic employee who has a designated room to go to when he needs time out during the day. The employee is annoyed because his football team lost a match, and he shouts abusive language at another employee during a team meeting; and even after some time out, this behaviour continues. The employer starts a disciplinary investigation, and Acas state that as the employee had a reasonable adjustment in place that could have helped in the situation, this is appropriate.

This is a considerable over-simplification. The fact that there had been one adjustment would not automatically mean that all reasonable adjustments had been made – and whether all or any reasonable adjustments had been made wouldn’t necessarily be the determinative factor as to whether it would be appropriate to implement a disciplinary process. Further, the example makes no mention of the fact that if a disciplinary procedure was appropriate, if the misconduct had been caused or contributed to by a disability, it would be incumbent on the employer to take that into consideration when deciding whether the action to be taken against the employee was proportionate.

Acas advise, correctly, that when an employer implements a formal procedure relating to conduct of performance involving a neurodivergent employee, it should consider what adjustments to the procedure are reasonable, which could include:

• talking through written correspondence with a dyslexic employee or repeating important information
• setting out meeting records clearly for an autistic employee who finds disorganised information distracting
• allowing someone with knowledge of an employee's neurodivergence to attend formal meetings – for example, a support worker

For legal advice relating to the employment of neurodiverse employees, contact a member of our Employment Team.