The National Autistic Society defines neurodiversity as “a way of saying that human brains are different to each other”, with autism (ASD) and attention deficit hyperactivity disorder (ADHD) being the most commonly discussed forms.
The City & Guilds Foundation reported in 2025 that around 15% of the UK population is neurodiverse. They also found that:
- 49% of respondents who considered themselves neurodiverse were only diagnosed at aged 30 or older.
- Only 35% of managers have received neurodiversity training, while 37% have had none at all.
- Public and private healthcare spending on ADHD and autism assessments continues to increase – alongside longer waiting times for a formal diagnosis.
Statistics from HM Courts & Tribunals Service showed that in 2020, 265 employment tribunal cases involved neurodivergent conditions, but by 2025, this had risen to 517. Supporting this data, the City & Guilds Foundation in 2025 also found that 13% of UK employers had been involved in employment tribunal proceedings relating to neurodiversity. The financial and reputational risk for employers is therefore significant.
“Neurodiversity” itself is not a protected characteristic under the Equality Act 2010. Rather, protection depends on whether an individual’s neurodivergence meets the s.6 definition of disability: a physical or mental impairment that has a substantial and long-term adverse effect on normal day-to-day activities. A formal medical diagnosis is therefore not required for an individual to be considered disabled under the Equality Act 2010, it is a question of fact for the Employment Judge to determine.
To reduce the risk of a disability discrimination claim, we would suggest employers take the following practical steps – particularly where an employee has self-diagnosed or is awaiting a formal neurodivergence diagnosis:
- Training, awareness and early action – The City & Guilds Foundation shows that this is clearly lacking. Managers must be equipped to understand neurodivergence and to respond appropriately if an employee raises concerns. If an employee mentions difficulties that are commonly associated with ASD or ADHD – such as difficulties with concentration, focus or time management, that they may be autistic, or are on a waiting list for an assessment – this should prompt supportive action. Managers should proceed with particular caution if performance issues arise, especially if an issue could be down to their specific neurodivergence for which they actually require support. For example, some individuals with ADHD need explicit instructions before undertaking a task. If vague instructions are given, it may be difficult for an employee with ADHD to do that task to the best of their ability or even, at all.Even if an employer does not have actual knowledge of a disability (because there is no formal medical diagnosis), the case law recognises that if an employer ought reasonably to have known about a disability e.g., an employee’s working pattern or behaviour is indicative of ADHD and they are awaiting a formal assessment, then they can be deemed to have constructive knowledge of a disability – thereby, triggering the employer’s duty to actively manage the employees’ health condition and possibly make reasonable adjustments too (see below).
- Referral to Occupational health (OH) – OH can play a crucial role in helping employers understand the impact of an employee’s neurodivergence on their work and identifying adjustments. OH will not determine whether an employee has a disability under the Equality Act 2010, but it can help ascertain the employer’s approach. For example, if there are underlying neurodivergent issues for an underperforming employee, OH can be useful to ensure that an employer is not assessing performance in a way that is discriminatory. From the perspective of the relationship between an employer and an employee – who may themselves be struggling with their condition and its impact on them – a referral to OH may also reassure the employee that their health and wellbeing is being taken seriously.A word of warning however – employers should note that once an OH report is received, it will be extremely difficult to argue that they did not know (actual knowledge) or could not reasonably have known (constructive knowledge), that the employee may have a disability. This makes it essential to engage proactively and constructively with the recommendations that follow. A further caution is that information about neurodivergence, including any health information and OH reports, constitutes special category health data under data protection legislation and employers are required to handle such information very confidentially and in compliance with GDPR.
- Reasonable adjustments – Employers have a statutory duty to make reasonable adjustments under the Equality Act 2010 with respect to employees with a disability. OH advice can help shape what adjustments may be beneficial but ultimately, the most effective approach is often a direct, open conversation with the employee about what assistance they consider would be useful or help them in the workplace. What is a “reasonable” adjustment however will depend on the context. It has to be an adjustment with the effect of reducing or removing any disadvantage suffered by the employee due to their disability and reasonable in and of itself. Larger organisations with more resources may – for example – be expected to make more significant adjustments than smaller employers. However, many adjustments carry little or no cost – taking the employee with ADHD who requires explicit instructions as an example, a reasonable adjustment may be that a line manager sets up a short call to explain their instructions in more detail or sets it out in writing instead of verbally.
The key message for employers supporting employees with self‑diagnosed or suspected neurodivergence is easy: do not assume they are not disabled. Act promptly, ensure managers understand how to respond, and avoid requiring a medical or OH diagnosis before exploring appropriate assistance. Simple or helpful adjustments in any event may remove the need for medical intervention.
Early, informed and compassionate engagement not only reduces legal risk, it fosters a more inclusive workplace and productive employees; whether neurodivergent or not.