Public discussion about neurodivergence has become increasingly polarised. Headlines and political commentary have focused on whether conditions such as ADHD and autism are being diagnosed too readily, with some suggesting that “normal behaviours” are being labelled as medical conditions.

Recent reports that some junior doctors say they have ADHD in order to request workplace adjustments, such as avoiding night shifts, have only added to the controversy, prompting questions in some quarters about whether neurodivergence is being used as an excuse or even exaggerated in the workplace.

That said, the legal position is much simpler. Employment law doesn’t revolve around arguments about diagnosis. Instead, the key question is ‘Does the employee have an impairment that affects their ability to carry out normal day-to-day activities, and could the employer have taken reasonable steps to reduce any disadvantage being experienced by the employee’? So, don’t get hung up on diagnosis.

Is neurodivergence a disability?

Whether someone is legally disabled depends on the definition set out in the Equality Act 2010 which says that a person is disabled if they have ‘a physical or mental impairment that has a substantial (meaning more than minor or trivial) and long-term (meaning more than 12 months) adverse effect on their ability to carry out normal day-to-day activities’.

These activities include things like communication, concentration and social interaction. In practice, many neurodivergent people will meet this legal definition, meaning employers may have a duty to consider reasonable adjustments to help remove or reduce workplace disadvantage.

Diagnosis isn’t the key issue legally

Employment tribunals don’t focus on whether there’s a formal diagnosis but only on the impact of an impairment.

Therefore, insisting on a formal diagnosis before offering the employee support could leave you at risk legally, especially given the long waiting lists for ADHD and Autism assessments.

The duty to consider reasonable adjustments may already arise when an employee comes to you to say they’re having substantial and long-term challenges because of their condition.

In short, always respond to the effects the impairment is having, not simply to a diagnosis.

What do tribunals say?

Tribunal case law underlines the importance of recognising practical disadvantage and approaching decisions about employee behaviour carefully. For example:

A tribunal decided that the employer had failed to make reasonable adjustments to the working environment when an employee with Asperger’s syndrome found it difficult to work in an open-plan office where people frequently walked behind him. (Sherbourne v N Power)

A tribunal awarded an employee compensation for discrimination arising from disability of nearly £500,000 when his employer dismissed him for repeating a racial slur during a training session while asking how managers should deal with this type of language. He defended himself by saying that he was trying to clarify the issue being discussed rather than to insult anyone and his dyslexia affected how quickly he could process and find another way of saying it. (Borg-Neal v Lloyds Bank Plc)

A tribunal ruled that there was a failure to make reasonable adjustments by not adjusting the redundancy scoring criteria for a dyslexic employee which put her at a disadvantage. She was selected for redundancy partly because she scored badly on written communication. (Jandu v Marks & Spencer)

Keeping the focus where it belongs

Avoid getting drawn into the debate about over-diagnosis and just focus on these things:

It is also important that managers are properly equipped to deal with these issues. Training can help them recognise neurodivergence-related challenges, respond appropriately and handle conversations with greater confidence and consistency.

Ultimately, the aim should be to create a working environment that is fair, supportive and responsive to individual needs. The focus should be on employees’ actual experience at work, rather than on questioning whether a condition has been formally diagnosed or is, in the employer’s view, serious enough to justify support.

• What’s the impact on the employee? Don’t get hung up on the label or diagnosis. Start by looking at how the employee is affected in their day-to-day role. The key question is not what label applies, but whether they’re experiencing barriers at work and what support may help. Occupational health input can be useful where needed.

• What reasonable adjustments could be considered? Think about this early even if the employee isn’t yet diagnosed. Remember though that you’re not required to make adjustments that would be unreasonable for the business provided you have good reason (e.g. operational challenges or cost).

• Properly equipped to deal with these issues through training. Help managers recognise neurodivergence-related challenges, respond appropriately and handle conversations with greater confidence and consistency.

Ultimately, focus on considering employees’ actual experience at work within your business rather than on questioning whether a condition has been formally diagnosed or is, in your view, serious enough to justify support.