A sexual harassment complaint can become particularly difficult when the person accused of the behaviour is neurodivergent, or says that their behaviour may be connected to neurodivergence.
Employers can find themselves balancing legal duties pointing in different directions. They must take sexual harassment seriously and protect employees from further harm. From 30 October 2026, that includes taking all reasonable steps to prevent sexual harassment and protecting workers from harassment by third parties. At the same time, the Equality Act 2010 protects disabled people from discrimination and can require employers and service providers to make reasonable adjustments.
Neither duty cancels the other out. An employer should not tolerate harassment simply because somebody is neurodivergent. Equally, it should not assume that a neurodivergent employee, customer or service user can be disciplined, excluded or refused a service without considering the disability implications. The difficult question is usually how the conduct, the disability and the proposed response relate to one another.
When is neurodivergence a disability?
“Neurodivergence” is not itself a separate protected characteristic under the Equality Act 2010. Disability is. A person is disabled for Equality Act purposes where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In employment cases, the statutory test also encompasses the ability to participate fully and effectively in working life on an equal basis with other workers.
Autism, ADHD, dyslexia and other forms of neurodivergence can meet that definition. Being neurodivergent will often amount to a disability, although some neurodivergent people do not regard themselves as disabled.
A formal medical diagnosis is not always necessary. The legal question concerns the impairment and its effects rather than simply whether somebody can produce a diagnostic certificate. Current government guidance also makes clear that a person does not necessarily need to establish a medically diagnosed cause for an impairment.
That means an employer should be careful where somebody first raises possible autism or ADHD during an investigation. Dismissing the point because they have “never been diagnosed” could create its own risk.
It does not mean every assertion of neurodivergence must automatically be accepted as establishing disability. Where the issue matters to a disciplinary decision, employers may need appropriate evidence, occupational health input or further information about how the condition affects the individual.
The Employment Rights Act raises the stakes
From 30 October 2026, employers in Great Britain must take all reasonable steps to prevent sexual harassment of their employees. The Employment Rights Act 2025 also introduces liability for third-party harassment where an employee is harassed in the course of employment and the employer failed to take all reasonable steps to prevent it.
Third parties can include customers, clients, contractors, patients, students, service users and members of the public. Employers should undertake risk assessments, incident monitoring, policies, training, contractual terms and appropriate safety arrangements.
There is also now more time for employment claims to arise. For matters occurring on or after 1 October 2026, the Employment Rights Act reforms extend many employment tribunal time limits from three months to six months. Employers therefore need to take seriously both sides of the legal risk.
Failing to protect an employee from foreseeable harassment can expose the organisation to a claim. Treating a disabled alleged harasser unlawfully can generate a separate discrimination claim.
Does neurodivergence excuse sexual harassment?
No automatic rule says that it does. A neurodivergent person might, for example, have difficulty interpreting social cues, recognising when somebody is uncomfortable, regulating impulses or understanding ambiguous communication. Those factors could potentially be relevant to what happened and to the appropriate response.
They do not determine whether the conduct meets the legal definition of sexual harassment. Under the Equality Act, sexual harassment concerns unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Intent is relevant to some aspects of an investigation, although conduct can amount to harassment because of its effect even where that effect was not intended. The employer therefore still needs to establish what happened and protect the person affected.
A second question then arises: did the behaviour arise in consequence of a disability?
Section 15 of the Equality Act protects a disabled person from being treated unfavourably because of something arising in consequence of their disability unless the treatment can be objectively justified as a proportionate means of achieving a legitimate aim.
The courts distinguish disability from misconduct
The case of McQueen v General Optical Council [2023] EAT 36 is particularly useful. Mr McQueen’s employer accepted that he had disabilities including dyslexia, symptoms of Asperger’s syndrome and neurodiversity. There had been a number of difficult confrontations with colleagues. The Employment Tribunal considered medical evidence about his condition and accepted that his disabilities could affect his workplace interactions.
It nevertheless found that the particular conduct under consideration had not arisen from his disabilities. On those occasions, the tribunal found that his behaviour resulted from losing his temper and resentment at being told what to do. The Employment Appeal Tribunal upheld that conclusion. That is an important distinction for employers. A person can genuinely be neurodivergent and legally disabled without every piece of inappropriate conduct necessarily arising from that disability.
However the reverse can also occur.
In Risby v London Borough of Waltham Forest, the EAT held that offensive misconduct could have the necessary connection with disability even though the employee’s short temper itself was not caused by the disability. His anger had arisen because an event had been moved to a venue inaccessible to him as a wheelchair user. His disability was therefore an effective cause in the chain leading to the misconduct.
The employer still may be able to take disciplinary action where behaviour arises from disability. It may, however, have to demonstrate that the action taken was proportionate and consider whether reasonable adjustments or a less discriminatory response could adequately address the problem.
There is also a specific exclusion for abusive tendencies
There is an additional provision employers should know about, although it needs to be applied carefully. The Equality Act 2010 (Disability) Regulations exclude a tendency to physical or sexual abuse of other persons from being treated as an impairment. Government guidance explains that this exclusion can apply even where that tendency arises as a manifestation of an impairment which would otherwise constitute a disability.
This does not mean that every allegation of sexual harassment falls outside disability protection. “Sexual harassment” covers a very wide spectrum of behaviour, from sexual comments and inappropriate messages to unwanted touching and much more serious conduct. The statutory exclusion concerns a tendency to sexual abuse, which should not simply be treated as synonymous with every act capable of constituting sexual harassment.
Employers dealing with serious or repeated conduct should therefore avoid trying to make that legal classification themselves without appropriate advice.
What if the alleged harasser is an employee?
Where the person accused is a staff member, the employer should investigate the harassment allegation through a fair process.
If neurodivergence may be relevant, that investigation should also ask whether the organisation knew or ought reasonably to have known about a disability, whether the particular behaviour could have arisen from it and whether reasonable adjustments are required during the investigation or disciplinary procedure.
Employers dealing with neurodivergent employees to consider adjustments during formal procedures. These could include clearer written information, additional time, different communication methods or allowing an appropriate support person to attend meetings.
None of that prevents an investigation into misconduct. For instance an autistic employee behaving abusively towards a colleague despite an existing adjustment intended to help them regulate their behaviour. In such a case, commencing a disciplinary investigation can be appropriate.
A reasonable adjustment does not normally require another employee to endure sexual harassment. Where there is a continuing risk, the employer may need to change reporting arrangements, duties or working locations, restrict contact, or in sufficiently serious circumstances consider suspension while the allegation is investigated.
Dismissal may ultimately be justified in some cases. The decision should follow a fair investigation and take account of any disability connection rather than proceeding from a blanket “zero tolerance” rule that prevents the employer considering the individual circumstances.
What if the alleged harasser is a third party?
Suppose an autistic customer repeatedly makes sexual comments to an employee. The employee asks their manager for help. The customer explains that they struggle to recognise social boundaries.
The employer now has two sets of obligations to consider. It has a duty to take all reasonable steps to protect its employee from third-party harassment. It may also be providing a service to a disabled person and therefore have obligations under the Equality Act towards the customer.
Simply telling the employee to tolerate the behaviour because the customer is disabled would create obvious risk under the new third-party harassment regime. Equally, an immediate permanent ban imposed simply because the customer is autistic could raise disability discrimination issues.
A proportionate response might initially involve explaining the boundary clearly and unambiguously, adapting communication where appropriate, involving a support person where lawful and useful, changing how the service is delivered, or ensuring that the customer interacts with staff under more controlled arrangements.
If the harassment continues or the risk is serious, restricting or ending access may be justified. Service providers can lawfully treat somebody unfavourably because of something arising from disability where they can show that the treatment is a proportionate means of achieving a legitimate aim. Protecting employees and other service users from harassment and maintaining their safety are capable of being very strong legitimate aims. The proportionality question concerns whether the particular restriction imposed was reasonably necessary in the circumstances and whether workable alternatives were considered. This means disability does not create an absolute entitlement to receive a service in circumstances where doing so exposes staff to harassment.
What if the alleged harasser is a service user?
The same principles become more complex in healthcare, education, social care and similar settings because withdrawing a service may be difficult, inappropriate or in some cases impossible. A hospital cannot necessarily respond to sexual harassment by a patient in the same way a nightclub responds to a customer.
If a patient with dementia, an autistic service user or somebody with another cognitive or neurological condition repeatedly makes sexual comments or touches staff inappropriately, the employer still has a responsibility to protect those employees.
“That is part of the job” will be increasingly difficult to defend where there were reasonable measures available to reduce the exposure. Those measures will depend heavily on the setting. They might include staffing arrangements, avoiding lone working, clearer behavioural plans, additional supervision, staff training, environmental changes, communication adjustments, incident monitoring or reallocating particular interactions where that can be done safely and fairly.
Where the organisation is itself responsible for providing the service, it should also consider its duties to the disabled service user. The Equality Act requires service providers to make reasonable adjustments and prohibits unjustified discrimination arising from disability. The duty to make adjustments in services is anticipatory, meaning providers should think ahead about barriers affecting disabled people rather than waiting for individual problems to arise.
The solution therefore may require modifying how the service is provided rather than simply refusing it. Serious behaviour may nevertheless justify restrictions. Protecting employees does not cease to be a legitimate objective because the individual presenting the risk is disabled.
What if someone only raises neurodivergence after the complaint?
This is where HR needs to avoid two extremes. An employer should not automatically regard a late disclosure as an excuse invented to avoid disciplinary action. Some people are diagnosed late, are awaiting assessment or have never previously considered themselves disabled.
At the same time, an employer does not have to accept without investigation that the alleged behaviour resulted from neurodivergence simply because the possibility is raised. The sensible response is to pause long enough to establish whether the information is potentially material.
That might involve asking the employee to explain the connection they believe exists, considering occupational health or specialist evidence, reviewing existing workplace information and exploring whether adjustments are needed to the disciplinary process. The investigation into the underlying harassment can normally continue.
Balance does not mean inaction
Cases involving disability and harassment genuinely require balance. Employers may need to make adjustments for a neurodivergent employee, adapt a service for a disabled customer or understand why particular behaviour occurred. They also have legal responsibilities towards the people subjected to that behaviour. A sound process therefore separates several questions:
Did the conduct happen?
Investigate the allegation fairly.
Does the person have a disability for Equality Act purposes?
Look at the statutory test rather than relying only on a diagnostic label.
Did the conduct arise from that disability?
Do not assume either that it did or that it did not.
Can the risk be reduced through reasonable adjustments or another proportionate measure?
Consider practical alternatives.
What action is necessary to protect employees?
The employer’s preventative harassment duties continue to apply throughout.
The law does not require employers to choose between disability inclusion and protection from sexual harassment. It requires them to understand both sets of obligations and make decisions that can be justified on the facts.
For HR, that makes documentation particularly important. Record the risks identified, the disability issues considered, the adjustments explored, the needs of the person reporting harassment and the reasons for any restriction, disciplinary sanction or other protective measure. That evidence may ultimately be what demonstrates that the organisation took both equality and harassment prevention seriously.
