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Neurodiversity: a guide to the law

A guide to the law

The legal definition of a disabled person is someone ‘with a physical or mental impairment that has a substantial adverse impact’ on their ability to carry out ‘normal’ day-to-day activities. The disability must have lasted, or will last, at least 12 months. People with neurodiverse conditions who meet these criteria are defined as disabled people for the purposes of the Equality Act 2010.

The following actions by an employer are outlawed by the Equality Act:

Direct discrimination: treating a disabled employee less favourably than other employees.

Indirect discrimination: this may occur when the application of a provision, criterion or practice to everyone has particular disadvantages for people with a disability compared to people who do not have that disability, and where the provision, criterion or practice cannot be justified as meeting a legitimate objective.

Discrimination arising from disability: this occurs when a disabled person is treated less favourably because of something connected with their disability, and where the discrimination cannot be justified.

Failure to make a reasonable adjustment: the linchpin of the law is the requirement on an employer to make a reasonable adjustment where a disabled worker would be at a substantial disadvantage compared to non-disabled colleagues. It covers provisions, criterion, practices and physical features and the provision of auxiliary aids. Once it has been established that the adjustment is reasonable, failure to comply is a breach of the law and cannot be justified. ‘Reasonable’ is defined as:

(a) whether the adjustment is effective in removing the obstacle;

(b) whether the adjustment is practical;

(c) the cost of the adjustment in relation to the resources of the organisation;

(d) the availability of financial support (such as Access to Work).

Prospect has suggested what might be appropriate as reasonable adjustments in our section on What a good manager would do.

It is our view it is generally better to resolve potential issues of discrimination within the workplace by negotiation and through internal grievance and appeal procedures before resorting to the law. Nevertheless, if you believe there are personal cases where discrimination may be an issue, contact your workplace representative or your Prospect full-time officer at the earliest opportunity.

More detail can be found in Prospect’s Negotiators’ Guide on Disability Equality. There is also guidance from the TUC and from the Equality and Human Rights Commission.