Ahead of the fourth annual Global ADHD Conference, speaker and leading neurodiversity lawyer Emma Thompson explores the key issues for HR and People leaders.
The Global ADHD conference taking place this weekend (2 to 3 October) spans the globe by running for 24 hours across all time zones with the aim of raising ADHD understanding, individually, locally, nationally and worldwide.
I was invited to speak following my successful challenge of a discriminatory exam policy and my collaboration with ADHD UK offering a pro bono support group for people who have been discriminated against at work on the grounds of their neurodiversity. Both these experiences cast light on the nuances in this field that are becoming increasingly important for HR and people leaders as our awareness and understanding of neurodiversity increases.
ADHD, or Attention Deficit Hyperactivity Disorder, is defined through analysis of behaviour. People with ADHD show a persistent pattern of inattention and/or hyperactivity. It is officially classed as a neurodevelopmental disorder but can also be considered a disability if it substantially impairs daily functioning and development. Under the Equality Act 2010, there is a requirement on employers to make reasonable adjustments to ensure that the individual is not placed at a substantial disadvantage when compared to individuals without the condition.
My work with ADHD UK has illuminated the number of individuals with the condition being subjected to all types of disability discrimination, often due to a lack of understanding about the condition, intolerance of neurodivergent behaviours, and workplace practices that fail to accommodate cognitive differences. This usually presents as a failure to make reasonable adjustments, but also includes direct and indirect discrimination and sometimes harassment and victimisation too.
One worker recently shared how his request for noise-cancelling headphones and a quiet workspace to manage sensory overload was refused as “unnecessary” and not something the business could accommodate. He asked as an alternative to increase his working from home days to ensure a quiet
environment, however, this was also dismissed. The refusal to make these adjustments led to increased stress, reduced productivity and the individual eventually being signed off work.
Another employee revealed how she was informed by senior leadership that despite her securing some of the firm’s most profitable clients through her pitch work, she would not be considered for promotion because they perceived the need to provide her with reminders of deadlines, occasioned by her time blindness, as disorganisation and a lack of leadership potential.
Unfortunately, these examples are by no means atypical. The people we are supporting all have a similar story to tell, to a greater or lesser extent.
The impact on individuals is very real. Failing to support these employees leads to ADHD-related challenges like time blindness, distractibility and executive dysfunction, which can worsen without adjustments, leading to unfair performance reviews and, in some cases, disciplinary action. People have shared that their experiences have left them experiencing heightened stress and anxiety, burn out and mental deterioration, often leading to them leaving their employment as they feel misunderstood or marginalised.
While organisations must be mindful of how their policies and practices affect individuals, local authorities and politicians also have a responsibility to consider the broader impact of these decisions and policies on entire communities and demographic groups.
This was the situation when a local authority revised its exam policy to deny extra time to pupils with concentration challenges. This policy amounted to discrimination because it placed students with ADHD at a substantial disadvantage and amounted to a wholesale failure to make reasonable adjustments. Fortunately, when this discrimination was brought to the attention of the local authority, they acknowledged the issue and revised their policy to allow qualifying pupils with ADHD extra time once more – with other local authorities reportedly following suit.
This example from the education sector demonstrates how a policy, which is not necessarily about culture and working practices, can amount to discrimination.
The potential consequences for companies who don’t have effective policies to deter such discrimination are far reaching. There are clear legal risks of non-compliance, with organisations vulnerable to discrimination claims, potential tribunals, legal costs and the costs of settlement. These legal risks and costs bring with them the associated risk of reputational damage, particularly through adverse media coverage.
But the costs to business of non-compliance go beyond legal considerations. When individuals are not being supported in the workplace, there is the risk of underperformance and reduced productivity, alongside increased sickness absence. These are likely to have an adverse impact on workplace culture, leading to increased staff churn and additional recruitment costs.
Failing to support neurodivergent employees – like those with ADHD – can seriously damage an employer’s reputation. As more individuals feel empowered to speak openly about their needs, organisations that don’t listen or adapt, risk being seen as exclusionary – while those that do will stand out as inclusive, forward-thinking employers of choice.
HR and people leaders therefore need to ensure they have a clear understanding of what is and isn’t discrimination. In the tribunal case of Khorram v Capgemini, Ms Khorram, a senior cloud technologist, disclosed her ADHD diagnosis shortly after starting a high-pressure role at Capgemini. She struggled with executive functioning, particularly when tasks were ambiguous or required excessive multitasking. During her probation, she requested adjustments, which included clearer task-setting and ADHD-awareness training for her team. An occupational health assessment supported her requests. However, her employer did not implement the recommendations, and she was later dismissed following performance concerns.
The employer argued that her dismissal was based on performance, not discrimination. However, the tribunal found that failure to implement the recommended adjustments – especially after medical evidence was provided – constituted a breach of the duty to make reasonable adjustments. In these types of cases, tribunals will assess whether the employer knew or should have known about the disability; whether the adjustments were reasonable and practicable; and whether the failure to act placed the employee at a substantial disadvantage.
This example illustrates how nuanced individual situations can be, and how the risk of discrimination – direct, indirect, harassment or victimisation – can depend upon the extent to which an employee’s neurodivergence impacts them in the specific circumstances.
Significantly, a formal diagnosis or disclosure is not strictly required for a discrimination claim. What matters is whether the employer knew or ought reasonably to have known about the disability — this is referred to as “constructive knowledge.”
These potential complexities make it all the more important for HR and people leaders to ensure effective policies and procedures are both adopted and communicated throughout their organisations, with training for managers to help them recognise and identify individual needs, including ensuring reasonable adjustments are made to enable all members of staff to flourish.
Emma Thompson is co-Managing Partner at Thackray Williams and the head of the Employment Sector.
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