Employment & Pensions Blog: Neurodivergent Disabilities and reasonable adjustments in a Recruitment Process

We thought this blog would serve as a useful reminder to employers of their duty under the Equality Act 2010 to make reasonable adjustments to their recruitment processes for disabled applicants. We have focused particularly on applicants with neurodivergent disabilities and the importance for employers to consider the type of reasonable adjustments that might help neurodivergent applicants perform well, but also to safeguard employers against discrimination claims.

What is a neurodivergent condition?

The term neurodiversity is wide and encompasses various conditions, including autism, ADHD, dyslexia and dyspraxia. It refers to individuals with a neurological difference that can affect their social interaction, learning, attention and/or sensory processing. Common characteristics include difficulty making eye contact, understanding social cues and maintaining a conversation. Such conditions can in turn affect a person's ability to communicate effectively, or demonstrate their abilities and skills, during a recruitment process. 

Is neurodivergence considered a disability under the Equality Act 2010?

Within the Equality Act 2010 a person is considered disabled if they have a physical or mental impairment which has a 'substantial' (i.e. more than trivial) and 'long-term' (i.e. likely to last 1 year or more) adverse effect on their ability to carry out normal day to day activities. The difficulty with neurodivergence conditions is that they exist on a spectrum. Therefore, whether a neurodivergent condition is likely to meet the definition of disability under the Equality Act 2010 will very much depend on the symptoms and where they fall on the spectrum. It is important to note that job applicants are not required to provide a prospective employer with a formal medical diagnosis of their condition for those to be considered disabilities. It would be prudent for employers, in circumstances where conditions have been disclosed, to discuss (prior to the recruitment process commencing) the impact their conditions have on their ability to carry out normal day to day activities (including the disadvantages faced as part of the recruitment process) and consider the sort of adjustments which would be helpful to them so as to remove any substantial disadvantage when compared to non-disabled applicants.

Reasonable Adjustments 

The duty to make reasonable adjustments arises when an employer knows or ought to know that a job applicant or employee is disabled and that, as a result of their disability, they are likely to be placed at a substantial disadvantage when compared to other non-disabled individuals.  

When conditions are disclosed, employers should ask if the individual requires any reasonable adjustments to be made to account for any disabilities before the recruitment/interview process begins. There is no exhaustive list of the type of reasonable adjustments an employer should make for neurodivergent job applicants. Whether any particular adjustment is reasonable or not will depend on the resources of the employer and the disadvantage faced by the job applicant. Such reasonable adjustments can include: 

• Modifying the application process, for example, by allowing applicants to make and submit their applications over the telephone instead of in writing; 
• Explaining selection tasks and questions in advance to allow for preparation time;
• Allowing applicants more time at interviews to provide their answers or to allow alternative question formats (e.g. multiple choice format);
• Allowing oral responses rather than written responses during written assessments/tests;
• Ensuring questions posed are short, focussed and specific; 
• Offering the ability to support any oral answers provided at interview in writing after the interview. 
• Offering additional support before, during and after the interview process. 

The above list will not be relevant or reasonable in every case, but aims to provide employers with an understanding of the type of adjustments that can be made.

Comment

It is important for employers to remember that the duty to make reasonable adjustments does not arise if an employer does not, or could not, reasonably be expected to know about the disability, or that the applicant is likely to be placed at a particular substantial disadvantage when engaging in a recruitment process. That said, an employer should not rely on ignorance to defend a claim of discrimination, particular where it is evident that the recruitment/interview process affected an applicant’s ability to perform. Employers are therefore encouraged to err on the side of caution and make reasonable enquiries with applicants on matters surrounding their condition, its impact on their ability to perform during the interview process, and consider any reasonable adjustments which might remove that disadvantage for them.  

For more information, please contact a member of our Employment Team.