Farrar’s Employment Team reflects on the impact of our greater awareness of neurodiversity on litigation, particularly in the ET.

In Neurodiversity Celebration Week, it is interesting to reflect on the impact of our greater awareness of neurodiversity on litigation, particularly in the Employment Tribunal.

We all know many neurodiverse people who thrive in the workplace, however, the law in this area suggests that many neurodiverse people will be considered “disabled” in accordance with the definition in Section 6 Equality Act 2010.

According to research by leading law firm Irwin Mitchell there has been a 750% increase in claims relating to ADHD since 2000, a 96% increase in claims relating to autism and a 100% increase in claims relating to obsessive compulsive disorder. Nearly all of these will be brought for breaches of the Equality Act 2010 provisions that relate to disability.

The Employment Appeal Tribunal (EAT) case of Stedman v Haven Leisure Ltd ( [2025] EAT 82) is illustrative of how such conditions will very often be considered a disability. In that case, an Employment Tribunal had determined that the claimant’s ADHD and autism did not have a “substantial adverse effect” on his ability to carry out normal day to day activities.   The EAT reversed that decision, stated that the condition had to have a substantial adverse effect on just one day-to-day activity, and that it was not permissible to weigh the Claimant’s ability to conduct one day-to-day activity against another.

Additionally, in Steadman, the EAT said that the diagnosis of a condition like ADHD or autism was not only relevant to the stage of the analysis relating to “mental impairment”, but that it was also relevant to question of “substantial adverse effect”.

Over the past few years, many of us would have known adults or children who have had a diagnosis of a neurodiverse condition, like those referred to above, or others such as dyslexia, dyspraxia, Tourette’s or dyscalculia. It has therefore become almost common knowledge that such diagnoses rely heavily on the history presented by the person being diagnosed or by their parents/carers. The clinician considering that history will not be making a decision based on the Equality Act definition, but will be assessing the individual’s ability to cope with day-to-day life. The very fact that a person is seeking medical attention for which they may then go on to be medicated is strongly suggestive that at least one aspect of their day-to-day life has been impaired for at least 12 months as is required under the Equality Act.

Hence, in many, and perhaps most, instances where someone has a positive diagnosis they are likely, given the approach by the EAT in Steadman to be considered disabled: thus, giving a right to reasonable adjustments and to not be discriminated against inter alia because of “something arising” from that disability.

ACAS published guidance about neurodiversity in the workplace last year.  It has very useful sections on understanding neurodiversity, talking about neurodiversity,  performance, conduct and capability, and making your organisation neuroinclusive. As with all ACAS guidance it is a document to take seriously, it is also a very helpful starting point for organisations thinking about these issues.

In my practice I have seen that the number of claims involving such conditions has increased. Also, unlike many physical disabilities where adjustments or sensitive treatment of a disabled person has clearly established responses and norms, many employers struggle to respond appropriately. Many find it difficult to understand what a reasonable adjustment ought to be for someone with autism or ADHD, or how to prevent unfavourable treatment because of something arising from ADHD or autism.

Given that awareness of neurodiversity is now much more widespread, taking the steps to understand how organisations properly respond to known or suspected neurodiversity in workers and in the workplace is certainly not optional.

 

Review produced by Stuart Brady, barrister at Farrar’s Building and member of the Employment Team. For further information, please contact his Clerking Team. 

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