Neurodiversity and the disciplinary process

Here at Outset, our People Services team has recently advised on a number of situations involving disciplinary action in relation to a neurodivergent employee. A common thread to each case is a lack of confidence and understanding amongst managers and HR professionals about how to manage such a process in light of the employee’s specific needs.  We set out some key learnings below.

What is neurodiversity? 

Put simply, neurodiversity refers to the different ways the brain can work and interpret information. It covers a spectrum of conditions such as autism, ADHD, dyslexia. It is estimated that 1 in 7 people are neurodivergent but that only 1 in 10 HRBPs actively manage the needs of their neurodivergent employees.  

Many positive attributes are associated with neurodiversity but those who are neurodivergent often benefit from flexibility in working environments and arrangements. When considering disciplinary action in relation to a neurodivergent employee, the need to consider flexibility in how the process is handled is key. Indeed, such flexibility may be required as part of an employer’s obligations under the Equality Act 2010 to make reasonable adjustments if the employee’s condition qualifies as a disability under that Act. 

How should employers approach the disciplinary process for a neurodivergent?

Employers should not need to depart too significantly from their usual disciplinary procedure but consideration should be given to whether additional steps might need to be taken to enable the employee to participate effectively, and without disadvantage, for example: 

Understand - Before commencing a disciplinary process, ensure that you understand the employee’s condition and how that, and any medication they take, might disadvantage them in a disciplinary investigation and procedure. 

• Ideally, you will have undertaken a mental health/wellbeing assessment with your neurodivergent employees at the outset of employment and on a regular basis throughout so that the ongoing relationship is based on a good understanding of the employee’s needs, triggers and any adjustments that will help them to work effectively. 
• However, whether or not a well-being/mental health assessment has been done, we recommend that before any disciplinary procedure starts, you meet with the employee to explain that a matter requires investigation and to ask what adjustments might be needed to accommodate the employee’s needs through that process. This discussion can be viewed as a sort of “pre-investigation” if you like. 

Act - Once informed about what adjustments the employee believes are necessary, if any, implement those adjustments that it is reasonable to make. This will involve a consideration of the practicalities, cost and the extent to which the adjustment will remove any disadvantage.  

• A reasonable adjustment may simply involve providing training to managers handling the process to ensure that they understand the best ways of communicating or presenting information to the employee 
• However, other types of adjustments might include conducting meetings in different formats, such as remotely, providing the employee with a list of written questions before a meeting and/or additional time to enable the employee to respond.  Alternatively, allowing them to be accompanied by a trusted friend or family member that is not a work colleague.
• In some cases, it may necessary to arrange for an OH report to help you to identify what adjustments, if any, would be reasonable and effective in reducing any disadvantage the employee might otherwise suffer during the disciplinary process. 
• At each stage, keep the matter under review and listen to the employee. Do not apply a “one size fits all approach”. Consider each case on its own facts taking into account the specific nature of the employee’s condition.

Consider -Throughout the process, it is important to consider whether an employee’s condition is linked, or has contributed, to their behaviour.

• As part of the initial investigations, ask the employee about how their condition might manifest itself in certain situations. This includes considering how they might respond to the investigation and disciplinary process itself as well as whether their condition is the cause of, or linked to, the behaviour being investigated. 

• Again, an OH assessment might be useful to allow you to make an informed decision on how to manage particular behaviours associated with the employee’s neurodiversity and assess the risk of repeat occurrences. 
• This is particular relevant when considering what might be an appropriate outcome of a disciplinary process. For example, if a disciplinary warning is being considered, think about whether some modification to this sanction would assist, such as additional support, mentoring or further training to help the employee understand and meet the required standards of behaviour.
• Notably, case law suggests that a failure to take into account an employee’s neurodiversity might lead to a finding of unfair dismissal, or even victimisation if it is disability.  

Discrimination and neurodiversity 

In the last year recent research found that claims of discrimination against neurodiverse employees is an issue, with over 100 employment tribunal cases where employees said their neurodiversity was part of the reason for the discrimination they experienced. 

Chloe recently commented for People Magazine on the topic about the role of HR to avoid such claims. She says “Addressing neurodiversity in the workplace in a proactive way is a crucial aspect of fostering an inclusive environment. Employers need to do more than pay lip service by simply putting a policy in place: they must take proactive steps if they want to minimise the risk of discrimination claims. 

This includes raising awareness among employees about different neurodiverse conditions, providing regular training to promote understanding and empathy, and implementing tailored accommodations to meet individual needs. 

 Sometimes managers and peers exhibit frustration with the needs and behaviours of neurodiverse colleagues – the role of HR in facilitating education, support and fostering understanding is crucial. 

Often it’s a case of getting each party to understand the other properly, which helps remove that frustration and promote better working relationships.”

Read the full article here. 

In conclusion, dealing with disciplinary issues in relation to neurodivergent employees is an area that has its own challenges and ensuring best practice involves taking a more holisitic approach.  

What is clear is how important it is for managers and HR teams to have a basic understanding of what it means for an employee to be neurodivergent. How blanket assumptions should not be made and instead, each employee should be treated as an individual with information obtained about their specific challenges before decisions are taken.