Employers should embrace neurodivergent staff in the workplace
Businesses should be aware of their legal obligations, says Chris Phillips
Scotland’s workplaces are home to a rich, varied workforce and for the estimated one in five people who are neurodivergent, the environment in which they work can make the difference between thriving and struggling. Yet many employers remain uncertain about their legal obligations, exposing them to significant risk.
Neurodiversity is an umbrella term covering a range of neurological conditions including dyslexia, dyspraxia, ADHD, autism, dyscalculia and Tourette’s syndrome, among others. These conditions affect the way people process information, communicate and interact with the world around them. Crucially, they are not binary; traits exist on a spectrum, and the same condition can manifest very differently from one person to the next.
Under the Equality Act 2010, neurodivergent conditions can constitute a disability where they are found to have a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. “Substantial” means more than minor or trivial, but it does not require a condition to be severe. This means that many neurodiverse employees may fall within the legal definition of disability under the Equality Act 2010 and therefore attract protected characteristic status, even if they do not consider themselves to be disabled.
Where the Act applies, employers have a legal duty to make reasonable adjustments to remove or reduce workplace barriers that may place neurodiverse employees at a disadvantage. What is “reasonable” will depend on the circumstances, but the bar is not as high as many employers assume.
Practical examples include providing written instructions rather than relying solely on verbal communication; allowing flexible working hours to manage sensory or concentration difficulties; offering a quieter workspace; extending deadlines where processing time is affected; and providing assistive technology or specialist software. Adjustments to performance management processes, for example, providing feedback in writing in advance of a meeting, can also be transformative. The key is that adjustments should be tailored to the individual, not applied as a one-size-fits-all policy.
One of the most complex aspects of neurodiversity in the workplace is that many individuals have never received a formal diagnosis. NHS waiting lists are long, private assessments are costly, and some people simply do not recognise that their experience has a name. Others may know they are neurodivergent but fear stigma or career consequences.
Employers cannot wait for a diagnosis before acting. Employment tribunals have found that where an employer knew, or reasonably should have known, that an employee was disabled, they had a duty to consider adjustments. If a manager notices patterns of behaviour, such as difficulty with time management, inconsistency in written work, sensitivity to noise, or anxiety in unstructured situations, that is sufficient to prompt a conversation. The right approach is a sensitive, open enquiry; asking how the business can support the individual to do their best work.
Beyond legal compliance, there is a strong business case for embracing neurodiversity. Neurodiverse employees frequently bring exceptional strengths – creative thinking, attention to detail, pattern recognition, hyperfocus – that add genuine value. Employers who capture that value are those who have created cultures where people feel safe to come forward.
Practically, this means investing in awareness training for line managers, reviewing EDI policies to ensure neurodiversity is explicitly supported and training HR teams to respond to disclosures with confidence. The law is clear, even if its application requires nuanced judgement. Employers who take a proactive, people-centred approach to neurodiversity will reduce their legal exposure – and build workplaces that genuinely work for everyone.
Chris Phillips is an employment law partner, Thorntons