We supported SHL to run a compliant collective consultation process, following the need to...
In the first of a series of articles by Tessa Robinson on the ever important and evolving subject of Equality Diversity and Inclusion in the workplace, we take a look at neurodiversity with a focus on ADHD.
ADHD has seen a marked rise in diagnosis and prominence in recent years, with celebrities such as Justin Timberlake, Ant McPartlin, Sue Perkins, Johnny Vegas, Simone Biles and Mel B all revealing their diagnosis publically. As ADHD awareness has risen, more individuals are seeking diagnosis and in turn employers are seeing an increase in the number of employees that may require additional support.
We assess whether ADHD is a disability under the Equality Act 2010, and what considerations employers should take into account in their EDI practices in relation to neurodiverse conditions.
Is ADHD a disability?
Many neurodiverse medical conditions are highly likely to amount to a disability under the Equality Act 2010. In order to be diagnosed as an adult with ADHD the symptoms experienced (such as inability to concentrate, excessive talking, interrupting conversations, appearing forgetful or losing things, and making careless mistakes) must be bad enough to interfere with how you get on with other people, or how you get on at work or school. In addition, symptoms must usually have been present from the age of 12 onwards.
When these diagnostic criteria are applied to the definition of a disability under the Equality Act 2010 “a physical or mental impairment that has a substantial and long term negative effect on your ability to carry out day to day activities”, it can immediately be seen how individuals with ADHD are likely to be classed as having a disability.
“Substantial” means more than minor or trivial (a diagnostic criteria for the impact it has on an individual’s life) and “long-term” means 12 months or more. Where symptoms must have been present from the age of 12 onwards in order to be diagnosed as an adult, this Equality Act requirement is automatically likely to have been satisfied.
However, it is important to note that every individual should be assessed on a case by case basis, and neurodiverse conditions are not automatically a disability.
Will an individual with ADHD continue to have a disability once they are receiving treatment?
One of the main treatments for ADHD is medication, however employers should note that successful use of medication to assist an individual with ADHD, will not mean that they do not have a disability.
If the substantial and long term negative effect would likely be present “but for” the medication (and any other treatment) then an individual will continue to have a disability under the Equality Act 2010. This is the same for all disabilities, whether a physical or mental impairment.
The Equality Act 2010 Guidance also suggests that if a person can reasonably be expected to modify their behaviour to reduce the effects of an impairment on their normal day-to-day activities, they might not be considered disabled. For example, a coping strategy may alter the effects of an impairment so that it is no longer substantial. However, the Guidance clarifies that account should be taken of “where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation”. Therefore in these situations these “modifications” would not be able to be relied upon to argue an individual is no longer disabled.
Many people with ADHD may also seek occupational therapy, or put methods in place to minimise the impact on their life. However, expecting an individual to modify their behaviour could be fraught with risk of discrimination risks for neurodiverse conditions. Coping strategies a neurotypical person could in theory use may, in practice, be difficult to implement. For example, expecting an individual with ADHD to use lists to organise themselves is unlikely to be a “reasonable” modification.
Should we always consider someone with ADHD and other neurodiverse conditions to have a disability?
Not necessarily. It is important to note that every individual should be assessed on a case by case basis, and neurodiverse conditions are not automatically a disability. Case law in the education sector, but which considered ADHD as a disability under the Equality Act, ruled that which although traits of ADHD may be present, if they are “milder” and allow an individual to go about their day to day activities in “an entirely normal fashion” their impact was not substantial and therefore they were not considered to have a disability.
However, for the above reasons and diagnostic criteria, this type of situation is likely to be rare (more so in adults who tend to have less structure and support in their life in terms of schools and parents).
What support can employers offer individuals with neurodiverse conditions?
It is important that an employer makes reasonable enquiries into an individual, their neurodiverse condition, and the impact it has on that particular individual, upon becoming informed of its existence. This may involve talking to the individual to understand their condition, and referring them to occupational health for a more specialised opinion regarding its impact and any support that may be offered.
Following these enquiries, it is likely that reasonable adjustments will need to be implemented. The duty to make reasonable adjustments is triggered in three situations:
- Where a provision, criteria or practice (PCP) applied by the employer puts a disabled person at a substantial disadvantage to those who are not disabled
- Where a physical feature of an employer’s premises puts a disabled person at a substantial disadvantage to those who are not disabled
- Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage to those who are not disabled. In this case an employer must take such steps as are reasonable to provide such auxiliary aid.
Where a PCP does put a disabled employee at a disadvantage, the duty begins as soon as the employer is able to take the steps to alleviate the disadvantage. With neurodiverse conditions, these PCPs are likely to be simply “standard” day to day ways of working which need adjusting. For example – an open plan office setting may not suit an individual with ADHD. Small changes to ways of working are likely to have a huge impact, and in some cases auxiliary aids (such as noise cancelling headphones) are also likely to be of great assistance.
A more diverse workforce
It should be remembered that individuals, with or without disabilities, all have differing strengths to offer an employer. In some situations neurodiverse conditions may not amount to a disability, but despite the lack of legal obligation employers should embrace these conditions and offer appropriate support.
By embracing neurodiverse conditions, and taking the time to understand how they affect your employees individually, you will nurture a positive workplace culture where everyone feels seen, and valued. This will ultimately lead to a happy, productive workforce where turnover of employees is low.
Next month we will examine mental health issues and the issues employers should be aware of when managing these in the workplace.