Do you need to wait for a diagnosis before making reasonable adjustments for a neurodivergent employee?

An employee may believe that they are neurodivergent, or you may suspect they are, but what are your legal obligations if they don't have a formal diagnosis. Do you still have to support them and make reasonable adjustments? And if you do, what does reasonable look like?  

What is neurodiversity?

According to ACAS in their recent guidance ‘Understanding neurodiversity’, it describes the natural differences in how people's brains behave and process information. Neurodivergent conditions can include ADHD, autism, dyspraxia, and dyslexia as well as other conditions.

Why may an employee not have a diagnosis?

There can be a few reasons why an employee doesn't have a formal diagnosis. ACAS suggests that employees might avoid seeking a diagnosis due to fear of negative reactions or because they don't think it's necessary. Long NHS waiting times can, in particular, prevent employees from getting a formal diagnosis. 

Does it matter if an employee doesn't have a diagnosis?

As far as employment law is concerned, no it doesn't. 

Under the Equality Act 2010, a person has a disability if 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. Each part of this test must be met. In the context of day-to-day activities, someone who is neurodiverse might for example, struggle to process lots of instructions at the same time, or find social interaction difficult. But it's important not to generalise as everyone is different. 

The key factor is the impact the impairment has on them, not whether they have a formal diagnosis.

As the Equality and Human Rights Commission (EHRC) say in their Employment Statutory Code of Practice, “There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.”

Ultimately, an employment tribunal decides if an employee is disabled under the Equality Act 2010. While a diagnosis is not needed, an employee will need to adduce some form of evidence to satisfy the tribunal that they meet the definition. 

What are reasonable adjustments?

If an employee is disabled under the Equality Act 2010, employers are legally obliged to make reasonable adjustments to avoid the disadvantage the disability causes the employee at work. 

Everyone is different so there will be no ‘one size fits all’ approach when it comes to what are reasonable adjustments. BUPA explains in its ‘Supporting neurodiversity in the workplace’ guidance that employers should avoid making assumptions and instead get to know the individual to find out how they can best support them. They suggest that the following adjustments may help some neurodivergent employees:

• supportive technology and equipment e.g. speech-to-text, text-to-speech or mind-mapping software, dictation tools, a daily planner, dual screens
• clear communication 
• adapting the workplace to minimise bright lighting and noise levels by providing adjustable lighting or desk lamps, using partitions and room dividers, and creating quiet zones for employees. 
• creating an inclusive environment so that employees feel able to speak with managers 

Obtaining an occupational health report may also be useful for providing suggestions for adjustments. 

Whether an adjustment is reasonable depends on the specific facts. The Court of Appeal in Smith v Churchills Stairlifts plc explained that the test of reasonableness is objective and it's ultimately for a tribunal to decide. 

The EHRC in its Employment Statutory Code of Practice sets out some factors for an employer to consider:

• whether taking any particular steps would be effective in preventing the substantial disadvantage
• the practicability of the step
• the financial and other costs of making the adjustment and the extent of any disruption caused
• the extent of the employer's financial or other resources 
• the availability to the employer of financial or other assistance to help make an adjustment (e.g. Access to Work); and
• the type and size of the employer

There's no requirement on the employee to make suggestions but it's best to ask the employee for their input and take on board what they have to say. Even if you don't think that a particular adjustment will work (or is likely to work) it's often sensible to trial it for a short period. That makes you look reasonable, because you will be able to tell a tribunal that you were willing to give the adjustment a go, even though you suspected it wouldn't help.  

We recommend that you record all adjustments you have made and explain why you haven't implemented others. Ensure this information is kept confidentially and in line with data protection requirements. If an employee gets a new line manager, ensure the information is transferred and not lost when previous managers leave. 

Navigating this area can be challenging for employers. It's advisable to seek legal advice to discuss specific circumstances. 

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