What is neurodiversity?

Put simply, neurodiversity refers to the different ways the brain can work and interpret information. It covers a spectrum of conditions such as autism, ADHD, dyslexia.

It is estimated that 1 in 7 people are neurodivergent but that only 1 in 10 HRBPs actively manage the needs of their neurodivergent employees.  

Many positive attributes are associated with neurodiversity but those who are neurodivergent often benefit from flexibility in working environments and arrangements.

When considering disciplinary action in relation to a neurodivergent employee, the need to consider flexibility in how the process is handled is key. Indeed, such flexibility may be required as part of an employer’s obligations under the Equality Act 2010 to make reasonable adjustments if the employee’s condition qualifies as a disability under that Act.

How should employers approach the disciplinary process for a neurodivergent?

Employers should not need to depart too significantly from their usual disciplinary procedure but consideration should be given to whether additional steps might need to be taken to enable the employee to participate effectively, and without disadvantage, for example:

Understand

Before commencing a disciplinary process, ensure that you understand the employee’s condition and how that, and any medication they take, might disadvantage them in a disciplinary investigation and procedure.

• Ideally, you will have undertaken a mental health/wellbeing assessment with your neurodivergent employees at the outset of employment and on a regular basis throughout so that the ongoing relationship is based on a good understanding of the employee’s needs, triggers and any adjustments that will help them to work effectively.
• However, whether or not a well-being/mental health assessment has been done, we recommend that before any disciplinary procedure starts, you meet with the employee to explain that a matter requires investigation and to ask what adjustments might be needed to accommodate the employee’s needs through that process. This discussion can be viewed as a sort of “pre-investigation” if you like.

Act

Once informed about what adjustments the employee believes are necessary, if any, implement those adjustments that it is reasonable to make. This will involve a consideration of the practicalities, cost and the extent to which the adjustment will remove any disadvantage.

• A reasonable adjustment may simply involve providing training to managers handling the process to ensure that they understand the best ways of communicating or presenting information to the employee
• However, other types of adjustments might include conducting meetings in different formats, such as remotely, providing the employee with a list of written questions before a meeting and/or additional time to enable the employee to respond. Alternatively, allowing them to be accompanied by a trusted friend or family member that is not a work colleague.
• In some cases, it may necessary to arrange for an OH report to help you to identify what adjustments, if any, would be reasonable and effective in reducing any disadvantage the employee might otherwise suffer during the disciplinary process.
• At each stage, keep the matter under review and listen to the employee. Do not apply a “one size fits all approach”. Consider each case on its own facts taking into account the specific nature of the employee’s condition.

Consider

Throughout the process, it is important to consider whether an employee’s condition is linked, or has contributed, to their behaviour.

• As part of the initial investigations, ask the employee about how their condition might manifest itself in certain situations. This includes considering how they might respond to the investigation and disciplinary process itself as well as whether their condition is the cause of, or linked to, the behaviour being investigated.
• Again, an OH assessment might be useful to allow you to make an informed decision on how to manage particular behaviours associated with the employee’s neurodiversity and assess the risk of repeat occurrences.
• This is particular relevant when considering what might be an appropriate outcome of a disciplinary process. For example, if a disciplinary warning is being considered, think about whether some modification to this sanction would assist, such as additional support, mentoring or further training to help the employee understand and meet the required standards of behaviour.
• Notably, case law suggests that a failure to take into account an employee’s neurodiversity might lead to a finding of unfair dismissal, or even victimisation if it is disability.

In conclusion, dealing with disciplinary issues in relation to neurodivergent employees is an area that has its own challenges and ensuring best practice involves taking a more holisitic approach.

What is clear is how important it is for managers and HR teams to have a basic understanding of what it means for an employee to be neurodivergent. How blanket assumptions should not be made and instead, each employee should be treated as an individual with information obtained about their specific challenges before decisions are taken.

Need help with the disciplinary process?

We give businesses personal support from qualified HR advisors to manage workplace compliance and HR challenges with confidence. We can walk you through the correct steps and answer your questions in relation to disciplinaries with our fixed-fee unlimited advice line.

Find out how we can support you and your team, speak to an expert today on 01622 47 41 49 or emailing info@primed.co.uk.

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