ADHD workplace compliance: Legal essentials

In the last few years, neurodiversity in the workplace has shot up the agenda for HR and People Teams everywhere. 

Today, conversations around ADHD, autism spectrum disorder (ASD) and other neurodiverse conditions are increasingly commonplace. Many employees rightfully want to hold their bosses and managers to account, ensuring their neurodiverse colleagues have the same chances to succeed as anybody else. And plenty of organisations want to do right by their employees and customers by offering the same opportunities to everybody.

But here’s the challenge: These issues are governed by a complex and often ambiguous legal framework. Even the most proactive and supportive employers could be forgiven for not having a clue where to start or how to get it right. 

We wanted to get to the bottom of this situation and offer practical guidance for HR and People Teams. To do that, we spoke to two experts who know more about this world than almost anybody. 

Here’s what they had to say.

Meet Tessa and Natalie...

Natalie Ellis is the Founder & Managing Director of Rebox HR, a specialist HR consultancy that provides advice, management tools and support to organisations of all shapes and sizes. 

Tessa Robinson is a talented and experienced employment law expert. As Legal Director at Outset, she regularly represents organisations at employment tribunals, giving her a detailed understanding of the employment law in this space. 

Natalie and Tessa are both incredibly experienced in topics around ADHD and neurodiversity in the workplace. But interestingly, we were also struck to find out they are both married to individuals who’ve been diagnosed with ADHD as an adult. It was particularly fascinating to chat with two people who understood the complex situation in such detail from both sides.

The challenge: How to support neurodiverse colleagues

Employers and People Teams naturally want to do everything they can to build the right policies around neurodiversity in the workplace. But that’s often easier said than done. 

Employees are becoming more and more aware of their own rights here, which increases the pressure for compliance and the risk of getting it wrong. As Natalie explains, there’s no legal cap on the amount an employee can claim against their employer, meaning the potential damages here are effectively limitless.

Employers are becoming increasingly aware of how important these issues are and what the potential risks are of getting them wrong. But that doesn’t necessarily mean they have all the answers. Many are worried about doing or saying the wrong thing and ending up with an expensive claim – even if their actions were meant in good faith.  

This is why it’s so important to build an effective and compliant policy around neurodiversity in the workplace – which we’ll discuss in more detail below. 

While the compliance element can be tricky and complicated, it’s a lot easier if you start out with the right positive attitude. That involves creating a culture of genuinely wanting to support neurodiverse people and helping them succeed in their jobs. That culture needs to be built on diversity, inclusion and acceptance.

4 key takeaways from Tessa and Natalie

Over the course of the discussion, Tessa and Natalie shared the most common questions, misconceptions and worries that employers have around ADHD and neurodiversity in the workplace. Here are four highlights: 

1. The bar for an ADHD diagnosis is higher than you think

One of the biggest questions employers have is where the legal definition of neurodiversity and ADHD lies. 

As Tessa explains, the bar is higher than you might think. Getting a diagnosis for neurodiverse conditions can be a time-consuming and difficult progress. Using ADHD as an example, she explains that symptoms have to have been present since the age of 12 and for there to be substantial long-term negative effects.

2. Neurodiverse employers may be considered disabled - but not always

Should neurodiverse and ADHD colleagues be considered disabled? 

This might seem like an academic question, but there’s actually a firm legal consideration here, since disability is a protected characteristic under the Equality Act 2010. This means employers have an obligation to make certain adjustments to accommodate disabled employees. 

Unfortunately, there’s no firm legal line here, which can make it difficult for employees to understand their obligations. Having a diagnosis for a neurodiverse condition will generally mean you’re classed as disabled, but not always. 

Nonetheless, Tessa’s advice for employers here is the same: It’s almost always safer to assume the employee is covered by disability protections. That way, you’ll fulfil your legal obligations either way.

3. What are reasonable adjustments - and what are they not? 

‘Reasonable adjustments’ might seem like a vague term, but it actually represents an important legal concept. Under the Equality Act 2010, employers are legally obligated to make reasonable adjustments to accommodate employees with protected characteristics. 

Such adjustments could include allowing remote work, creating ‘quiet zones’ in the office, buying noise-cancelling headphones or plenty more. The right adjustment is different for every employee – which is where it gets challenging. 

As an employer, you’re legally obliged to work constructively with employees to help identify and make the right legal adjustments for their specific conditions. But the crucial word here is ‘reasonable’ - it doesn’t mean you have to fulfil every request the employee sets out.

4. Neurodiversity vs. performance: It doesn't have to be a conflict 

Employees are often wary of legal consequences around performance management. Can neurodiverse and disabled colleagues be held to the same performance standards as everybody else? 

As Natalie explains, there’s no reason to worry if you have the right processes in place. Your goal should never be to have one rule for disabled employees and another for everybody else. In fact, you should be working to give all employees the tools they need to deliver on expectations – so everybody can be judged equally on merit. 

If you have a robust set of EDI policies and go out of your way to support employees, there’s no reason to isolate disabled employees and treat them differently from everybody else.

Best practices: How to help ADHD employees and avoid claims 

There’s a lot of ambiguity around what a reasonable adjustment involves and when an employer has fulfilled their obligations. In truth, every situation is different - and there are very few firm lines here. 

This makes things uniquely challenging for employers. But luckily, it’s not all a game of smoke and mirrors. 

As Tessa and Natalie explained, there are several practical steps that employers can take to help identify the right adjustments for each employee. Crucially, these also help demonstrate your compliance if the issue ever progresses to a claim.

1. Engage occupational health experts – Occupational health is a medical service that specialises in health and safety at work. In this context, they can work on the employer’s behalf to identify any reasonable adjustments in a collegiate and compliant manner. This is important because HR workers and lawyers aren’t medically trained and therefore aren’t best suited to identify adjustments for specific employees.

2. Check adhd.co.uk for a list of reasonable adjustments – While reasonable adjustments aren’t the same for everybody, there is a common set of options that it is helpful to consider. This can give you an idea of where to start and help begin the conversation with the employee about what adjustments are most appropriate. For ADHD adjustments, check out the list compiled by ADHDUK.

3. Introduce employees to Access to Work – Access to Work is a government initiative that helps provide funding and support to help disabled people in the workplace. This can include grants for specific equipment like noise-cancelling headphones. The employee has to apply for the funding themselves – but giving them the details and encouraging them to apply is another way to demonstrate you’re engaging with the issue and working constructively.

4. Don’t be afraid to open the conversation – Many employers worry about starting the conversation around mental health and disability in the workplace. While it’s not your job to diagnose individuals, it’s always worthwhile having an open conversation if you notice they’re struggling at work. Start by asking if they’re ok and take the conversation from there. They don’t have to open up, but it’s helpful to be the proactive party here.

5. Carry out a stress risk assessment – It can also be helpful to carry out a stress risk assessment to identify the potential issues and relevant adjustments that can be made. Check the government Health and Safety Executive website to find more details.

6. Follow the procedure – Procedure and protocol get a bad name, but the right policies are there to keep everybody safe. It can be tempting to adjust the protocols to suit the situation, but this is where legal difficulties arise. Using occupational health, risk assessments and legal support is the best way to make sure you’re doing right by the employee and fulfilling your legal obligations.

Neurodiversity in the workplace: How to get it right

The vast majority of employees coming to you for help will want to work constructively to find reasonable adjustments that help them achieve and deliver at work. This, on all accounts, is a good thing for both the employee and the organisation. But unfortunately, businesses also need to protect themselves against a small number of bad-faith actors who are simply trying to game the system.

But if you follow the right procedure, you can give support to the people who need it while keeping the business safe from unwelcome claims. As Tessa explained so eloquently - if you can honestly say ‘What more could we have done?’ in response to a legal claim, you’ll be in a strong position to defend yourself. 

Helpfully, it’s also the best way to help those employees who genuinely need it.