Neurodiversity describes the natural variation in how people think, learn and process information. In the workplace, it often includes (but is not limited to) conditions such as ADHD, autism, dyslexia, dyspraxia and Tourette’s. Managed well, neurodiversity can be a real strength for organisations. Managed poorly, it can create legal risk, particularly around disability discrimination and the duty to make reasonable adjustments.
This article explains how UK discrimination law applies, what employers should do to prevent issues arising, common pitfalls, and how to respond if an allegation is made.
How discrimination law applies to neurodiversity
Many neurodivergent employees and applicants will meet the legal definition of “disabled” under the Equality Act 2010 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.
Importantly, a formal diagnosis is not always required for someone to be protected as disabled and what matters is the impact of the condition/impairment.
Key discrimination risks for employers
Where neurodivergence amounts to a disability, the main legal risks for employers commonly include:
- Direct discrimination – treating someone less favourably because of disability
- Indirect discrimination – a “one-size-fits-all” policy that disadvantages disabled people, unless objectively justified
- Discrimination arising from disability – unfavourable treatment because of something arising from disability, unless justified
- Harassment – related to disability
- Victimisation – detriment because someone raised discrimination concerns
- Failure to make reasonable adjustments – a stand-alone form of disability discrimination
The duty to make reasonable adjustments is a major focus in neurodiversity cases. It applies where a disabled person is put at a substantial disadvantage compared to non-disabled people, and the employer is required to take reasonable steps to remove or reduce that disadvantage.
Steps employers should take to prevent discrimination
1) Build neuroinclusive systems (not just ad hoc fixes)
Create a culture where people can access support early and without stigma. Practical steps include:
- Refreshing equality, diversity and inclusion training to include neurodiversity
- Training managers on how to have supportive conversations (and when to involve HR)
- Reviewing job adverts and role profiles for unnecessary barriers
- Ensuring policies (performance, sickness absence, conduct, flexible working) are applied consistently and lawfully
2) Have a clear adjustments pathway
A robust “reasonable adjustments” process helps you act consistently and evidence your decision-making:
- A simple route for requesting adjustments (including without a diagnosis)
- A meeting to explore barriers and potential solutions
- A written adjustments plan and review points
- Documented rationale if an adjustment is not considered reasonable
Acas provides practical guidance and examples of adjustments for neurodiversity that can help employers structure an effective approach.
3) Consider Access to Work as part of the toolkit
Some employees may be eligible for government support through Access to Work, which can help fund practical support to start or stay in work.
4) Keep good records (without turning it into a “paper exercise”)
Records should show:
- what you understood the disadvantage to be
- what options were explored
- what was agreed (or why something was not agreed)
- how and when adjustments will be reviewed
Good records often become crucial evidence if a matter escalates.
Common pitfalls employers should avoid
- Waiting for a diagnosis before offering support
The legal test focuses on impact, not labels. - Over-reliance on “standard” processes
Performance management, absence triggers and capability procedures may need adjusting where disability is relevant. - Treating disclosure as the end of the conversation
Disclosure should trigger a collaborative adjustments discussion and periodic review. - Inconsistent management behaviours
Inconsistency can look like unfairness, and it makes risk harder to control. - Failing to consider the duty to make adjustments in recruitment
The duty can apply to applicants as well as employees. - Ignoring “low-level” conduct concerns that amount to harassment
Offhand comments, jokes or eye-rolling about someone’s traits can quickly become disability-related harassment.
What to do if an allegation of discrimination is made
How you respond in the first days matters. A calm, structured approach will protect the business and help resolve issues early.
1) Take it seriously and act promptly
Acknowledge the complaint and confirm next steps. Consider whether any interim measures are needed (for example, changing reporting lines or working arrangements) while you assess what has happened.
2) Follow a fair process
If it’s a grievance or complaint, ensure you follow a fair procedure consistent with the Acas Code of Practice. Tribunals can take the parties’ conduct into account when considering outcomes.
3) Check the adjustments position immediately
Ask:
- Have we identified any workplace disadvantage?
- What adjustments are currently in place?
- Do they need updating?
- Do any ongoing processes (performance/capability/disciplinary) need adjustments to ensure fairness?
4) Preserve evidence and keep notes
Secure relevant documents (emails, meeting notes, policies, performance records). Keep a clear audit trail of decisions and communications.
5) Consider early resolution options
Many disputes can be resolved through discussion, renewed adjustments, or mediated conversations—before positions harden.
6) Understand tribunal risk (including time limits)
If matters escalate, there are strict time limits for Employment Tribunal claims (often 3 months minus 1 day), and employees usually need to notify Acas first for early conciliation.
For a deeper look at tribunal issues specific to neurodiversity, see our related update: Employment Tribunals and Neurodiversity: Key Considerations for Employers.
How we can help
Neurodiversity-related concerns often sit at the intersection of HR practice, people management and legal risk. Getting the approach right early can prevent disputes, protect morale and significantly reduce the chance of a claim.
To learn more about how we support employers, visit our Discrimination Services for Employers page.
Or contact a member of our Employment & HR team:
- Call: 01244 354 800 / 0151 321 0000
- Email: employment@dtmlegal.com
This update is for general guidance only and is not a substitute for legal advice on specific circumstances.
