By Eli Brahams, VinciWorks compliance intern
Autism, ADHD, Dyslexia,Dyspraxia and other neurodivergent conditions are becoming increasingly well known and recognised. Consequently, tribunals are increasingly punishing violations of the Equality Act with reference to neurodivergence cases, with it now being the fastest-growing discrimination claim at employment tribunals, a third of all cases in 2025.
This is driven by a rise in the rate of diagnosis for conditions like ADHD, and the increased desire of those with such conditions to be fully included in the workpkace. Neurodivergence is only considered a disability if it has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. However, a formal diagnosis is not necessarily needed to be disabled, for instance other evidence can be used to prove an impairment has the “substantial” and “long term” effect in an employment tribunal.
So whilst legal risk is increasing on this front, increased awareness among employers about the obligations they have can mitigate this. Furthermore, understanding the effects of neurodivergence on individuals’ work, whilst making the necessary adjustments can actually increase the productivity of employees.
The legal obligations of employers
Employers ought to be aware of “constructive knowledge”. This is the concept that the employer is legally deemed to know an employee is disabled because they should have recognised the signs, even without a formal diagnosis or disclosure. If an employer does recognise signs, then they may have a positive duty to make “reasonable enquiries” to find out if the employee is disabled.
In practice, this may involve a one on one conversation with an employee to determine if the source of any poor performance originating from an impairment could be considered a disability as defined by the Equality Act. In disability discrimination cases, tribunals often look for a “trigger” that should have prompted an investigation. If an employee with a previously good record starts showing poor performance, high absenteeism, or behavioral changes, the employer is expected to ask why rather than jumping straight to disciplinary or other performance-related action. Furthermore, the purpose of this meeting ought to be inquisitive and not accusatory.
In cases where the employer identifies an impairment that may qualify as a disability, they have a duty to make “reasonable adjustments”. In practice, for neurodivergent employees, such adjustments may likely involve things as simple as augmenting sensory input, like through providing noise cancelling headphones or adjustable lighting, but could also include finding a suitable alternative role depending on the circumstances.
Moreover, such “reasonable adjustments” ought to be tailored for the individual employee, and their specific needs, as employment tribunals effectively require reasonable adjustments to be made for those with a disability before disciplinary actions are taken in most cases.
For instance, in the 2025 Saunders v Peloton Interactive case, the former employee made a constructive dismissal claim after the employer had disciplined him for poor performance related to autism/ADHD induced sensory overload that had become more severe as their work environment had become noisier. The tribunal found that the employer had discriminated against the employee by virtue of their failure to make reasonable adjustments. Furthermore, the manager was found to have constructive knowledge of the employees condition highlighting the duty to make reasonable inquiries. Indeed, if the employer had inquired into the source of the employee’s performance, he would have found that the employee had already informed HR of his disability.
Other examples of this in practice may be that poor timekeeping linked to ADHD, or perceived rudeness linked to autism should not be penalised before reasonable enquiries or adjustments are made. Assuming that an employer has already made reasonable adjustments for an underperforming disabled employee, they are still legally required by section 15 of the Equality Act to avoid “discrimination arising from disability”. In effect, this means an employer cannot “act unfavorably” (such as dismissing or refusing a bonus) to an employee whose underperformance issue arises from their disability, unless they can prove that this is a “proportionate action” to serve a “legitimate aim” (including maintaining operational efficiency, health and safety).
Neuroinclusion in the office
Legal compliance concerning those considered disabled due to neurodivergence goes beyond just ticking administrative boxes. Employers must create a supportive office environment beyond ergonomic chairs and noise cancelling headphones. Perhaps the most important element of the environment is the people in it. This is critical, for firms as hostile environments for neurodivergent employees can create especially damaging claims of harassment relating to disability.
The extent to which managers must be professional when dealing with neurodivergent employees is best illustrated with the controversial “sighing case” in Watson v Roke Manor Research 2025.
In this case, the employer was found to have been harassing the claimant (an employee with ADHD) through comments like calling him a “liability”, telling him to put his “ADHD aside for a moment”, and through expressing irritation through audible sighing, huffing and puffing.
Even though the judge acknowledged that the manager was under considerable pressure due to the underperformance of the employee, this explained but did not excuse the discriminatory behavior.
The fact that sighing appeared to be a factor in the judgement generated significant controversy, as critics argued that the judgement and by extension the Equality Act was overzealous in protecting disabled people. Nevertheless, it is an important reminder that harassment doesn’t have to be overt, physical or verbal. And generally the standards employers must hold themselves to to be neuro-compliant.
Turning neurodivergence to your advantage
Whilst these examples may appear to be intimidating for firms, due to the burden of obligation and legal risk that firms have in relation to their neurodivergent employees, there is a business advantage to making the necessary efforts to integrate the specific needs of neurodivergent employees. This doesn’t necessarily have to be expensive for companies, as the majority of reasonable adjustments made for neurodivergent employees have no cost, and the ones that do have a price tag, it is usually under £100.
In essence neurodivergence is just when someone’s brain processes information atypically. Whilst this may lead to all the well known disadvantages, it can also have advantages. For instance, A case study from JPMorgan Chase supports this, showing that professionals in the company’s Autism at Work initiative were 90% to 140% more productive and made fewer errors than neurotypical employees, especially in tech roles
The advantages of neurodivergence are becoming increasingly recognised by companies, with companies like SAP and Microsoft having neurodiversity programmes in order to make the necessary adjustments in order to harness the maximum potential of atypical minds.
This advantage is not just limited to tech roles. Neurodivergence in other sectors can provide advantages too. For example, in the management structure of a business, including neurodiverse people may help avoid groupthink, and when it comes to building a business, a study found that 40% of self made british millionaires are dyslexic.
Overall, whilst some employers may feel that current legal compliance obligations surrounding neurodivergent people can be burdensome for employers, with the sighing case being a good example of this, if managers deal with issues surrounding neurodivergence in a professional manner they can avoid this legal risk. Furthermore, there is also significant evidence towards the idea that by integrating those with neurodivergent conditions through tailored adjustments, firms can increase their productivity.
