Firms have a duty to make reasonable adjustments for staff with autism spectrum disorder.
We often hear people referring to others flippantly as being ‘on the spectrum’. As an employment lawyer, this makes me cringe. There are many people in the workplace who genuinely have autism spectrum disorder (ASD) which is the name for a range of similar conditions, including Asperger’s syndrome. Such conditions affect a person’s social interaction, communication, interests and behaviour (NHS definition).
An estimated one in every 100 people in the UK has ASD. More boys are diagnosed with the condition than girls and many adults remain undiagnosed, either through a failure to acknowledge symptoms or through choice. Particularly for those who are 40-plus, symptoms went undiagnosed and many people feel that their personalities and reactions are different from the norm but cannot pinpoint why that is. For example, they may find the work environment too noisy, or travelling to work may be too stressful because of the crowds. Sudden changes in routine can also be upsetting. Networking is often very difficult, and anxiety is heightened.
In the right job and with the right support, people with ASD have much to offer. They’re often accurate, reliable, and have a good eye for detail. These are exactly the traits we want in our lawyers.
The National Autistic Society (NAS) believes that an autism confident business will attract the right people and offer higher productivity with reduced cost. Firms can attract employees with technical ability and specialist skills and interests such as in IT and also those with detailed factual knowledge and an excellent memory.
Is autism a disability?
The Equality Act 2010 protects applicants and employees against discrimination. Those on the autistic spectrum would usually be able to satisfy the legal definition of disability ‘…physical or mental impairment… [which] has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities’.
It is worth noting that a person does not need to have disclosed that they are on the autistic spectrum to be discriminated against as it can occur by perception too. Where practicable, making reasonable adjustments early on can prevent the employee from having poor mental health and disrupting their employment later down the line.
How does the law protect autistic employees?
Employers need to ensure they are not directly or indirectly discriminating.
Direct discrimination – for example, not employing someone due to them being on the autistic spectrum and therefore assuming they will not be able to fulfil the role. This cannot be decided objectively.
Indirect discrimination – this is where a policy or procedure is in place that puts the person with the protected characteristic at a disadvantage. This can be decided objectively. However, the policy or procedure which falls into question must be seen to be a proportionate means of achieving a legitimate aim. They may think they have adjustments in place. But without a very acute reading of the person the adjustments may not be placing the autistic employee on equal ground.
Duty to make reasonable adjustments – an employer has a duty to make adjustments to allow a level playing field and enable the employee to do their job despite any challenges they may have. This will apply even where the employee does not come forward to ask for certain adjustments. Adjustments for those on the autistic spectrum will need to be considered very much based on consultation with the individual. As there is a wide range of symptoms, we cannot have a one-size-fits-all approach and consultation with the employee and possibly with medical guidance is advisable.
What are appropriate adjustments for autistic workers?
Making adjustments for autistic employees involves learning about autism and does not need to be costly, meaning the process can be very enriching for the employer and practical to put in place. It is impossible to pre-empt what an autistic employee may need to better enable them to undertake their job, so increased one-to-one’s with the line manager may be needed. The person may not recognise that adjustments need to be made. Adjustments can be said to fall into two categories in this situation:
- Sensory – for example, the colours on the computer screen or a particular noise or seating position in the workspace. The person may need to sit in a quiet area of the office or you could provide them with noise cancelling headphones.
- Policy – for example flexible hours, target/KPI adjustments and extra or split break times.
Clear recommendations regarding understanding how those on the autistic spectrum can view the work place can be found on the Autism Research Institute website. The very helpful guidance concentrates on some key areas, including clarifying expectations of the job, making sure instructions are concise and specific, ensuring the work environment is well-structured, and regularly reviewing performance. Managers should be encouraged to adjust their style of management. This is often done very poorly in law firms, in my experience. Things to bear in mind include providing sensitive but direct feedback, offering reassurance in stressful situations, supporting the employee to prepare for changes and helping other staff to be more aware.
Consequences of failing to provide a suitable work environment
An employee can make a claim to an employment tribunal for disability discrimination and constructive unfair dismissal in some cases. The costs of defending such claims are huge as is the disruption to the business. Putting in place simple measures such as those mentioned above will enable you to get the best out of your employees and protect your business.
Jay Bhayani is managing director and solicitor at Bhayani HR & Employment Law