(5 min read)
Businesses have a lot to gain by embracing neurodiversity in their employee demographic. Neurodivergent employees can bolster the range of skills, talents and opportunities modern enterprises need to succeed in today's market. However, recruitment processes are still heavily biased towards the neurotypical candidate. Not only does this inhibit businesses from sourcing the best talent, it also puts employers at risk of breaking the law. This article examines some of the unintentional barriers that recruitment processes may create and how they can be overcome.
DISABILITY HISTORY MONTH RUNS FROM 16 NOVEMBER TO 16 DECEMBER 2023.
For our third week of articles that spotlight disability issues, we focus on neurodiversity.
How can businesses embrace neurodivergence in recruitment?
One in every seven people in the UK are estimated to be "neurodivergent". Coined by sociologist Judy Singer, the term "neurodivergence" relates to individuals whose cognitive and neurological functions differ from what is deemed typical or normal (or otherwise known as "neurotypical"). The term is broad and includes a range of clinical classifications, such as autism, ADHD, dyslexia, dyscalculia, and dyspraxia. Workplace neurodivergence can bring huge benefits, as many neurodivergent individuals have a range of valuable skills that may exceed the neurotypical in relation to creative thinking, memory, communication and cognitive processing.
However, despite the many benefits to promoting greater neurodivergence in the workforce, neurodivergent candidates will often encounter barriers in mainstream selection processes.
The primary risks are in the arena of disability discrimination. For the purposes of the Equality Act 2010, employees and recruitment candidates will be deemed "disabled" if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Not all cases of neurodivergence will meet this test, but where it is met, the candidate will be protected from discrimination in recruitment and employment.
Established recruitment processes are most likely to come under legal scrutiny where employers fail to make reasonable adjustments required for the disabled candidate, or where they indirectly discriminate against the candidate.
Failure to make reasonable adjustments
There is a legal duty on employers to consider reasonable adjustments to help disabled job candidates where they are placed at a substantial disadvantage by:
- An employer's provision, criterion or practice.
- A physical feature of the employer's premises.
- An employer's failure to provide an auxiliary aid.
The impact of recruitment on a disabled neurodivergent candidate was explored in the recent case of AECOM Ltd and Mallon. In this case an applicant with dyspraxia requested to make a verbal job application because his condition made him too anxious to complete the online form. The company responded by email, insisting that he used the online form, and asked him for details of his impairment. The candidate did not respond to the question or submit the application. He later raised a claim against the company for their failure to make reasonable adjustments.
The Employment Tribunal held that the company had failed to make reasonable enquiries into the adjustments required by the claimant. The company had only asked for details of the candidate's specific disadvantage by email, even though it was aware of the candidate's difficulties with electronic communication. The Employment Tribunal held that the company should have called the candidate to ask for more information, as this would have enabled the candidate to provide the details required for the employer to consider adjustments. The Employment Appeal Tribunal agreed with this finding.
This case emphasises how communication can be a barrier for some neurodivergent candidates. It will be necessary in some cases to consider alternative means of communicating, which may be as simple as a phone call.
Indirect discrimination
Employers must also examine their wider recruitment practices to ensure that they do not discriminate against disabled candidates indirectly. This can occur when an employer adopts a Provision, Criterion or Practice (PCP) which places a disabled candidate at a substantial disadvantage when compared to a non-disabled candidate.
In the case of The Government Legal Service v Ms T Brookes an employee with Asperger's Syndrome claimed that the situational judgement test used for recruitment had placed her at a substantial disadvantage when compared to another candidate who did not have her condition. She claimed that this was because she lacked social imagination and would have difficulties in imaginative and counter-factual reasoning in hypothetical scenarios.
The Employment Tribunal and Employment Appeal Tribunal held the situational judgement test amounted to a PCP which placed the Claimant at a particular disadvantage by comparison with candidates who did not have her condition. In particular, it was noted that of the small number candidates who declared themselves as having Asperger's Syndrome, only one had passed the test.
Employers therefore need to think about their recruiting infrastructure, and how they may exclude disabled and neurodivergent employees from properly demonstrating their skills. Situational judgement tests can present barriers to neurodivergent candidates, so employers should consider alternative methods of assessment where that is possible.
Key takeaways
Employers should consider adopting a Neurodiversity Policy to consider better ways to accommodate neurodiverse candidates upon recruitment and beyond. They should also consider alternative recruitment methods and reasonable adjustments where necessary. Promoting awareness of neurodivergence through manager training can also help break down barriers when recruiting employees.
However, adapting to a neurodiverse world should not just be seen as a legal requirement or tick box exercise. Employers who lead inclusion by design will enhance their organisation's range of talent, expertise and service offering.
