Pre-pandemic, I wrote about my belief in the benefits of “disrupting the definition of normal” and embracing a neuro-diverse workforce.

Unfortunately I think the pandemic was a massive setback to this becoming a key Inclusion & Diversity initiative for employers.

Four things happened last week which made me realise the importance of placing this topic at the top of our agenda:

1. Listening to the wonderful Sophie Dow, Founder of Salvesen Mindroom Centres as part of the Scottish HR Leadership Group’s (SHRLG) D&I series;
2. Reading Michael Bernick’s article in the Harvard Law Review (16 Feb 2022) prompting the question “Is your Company Inclusive of Neurodivergent employees?”
3. Learning about the unfortunate predicament of fee-paid Judge Clarkson Palomares who took the Ministry of Justice to Tribunal over a breach of equality law; and
4. Last but not least, my neuro-divergent son getting a job.

In Bernick’s article (which focuses on the US) he recognises the changing demographic and the likely rise of neuro-divergent employees entering the workforce in the next 10 years.

Bernick acknowledges organisations (often in the Tech sector) such as SAP, Salesforce and Microsoft who are part of the “Neurodiversity @ Work Roundtable” are actively promoting recruitment into their organisations - but the number remains modest.

It is estimated that 15% of the UK workforce are neuro-divergent - and less than 20% of the group have employment. That’s a scary statistic!

Even for the legal profession, encouraging applicants from neuro-diverse backgrounds could be the key to finding new ways of considering legal problems and resolving disputes.

As a profession, I would say we suffer more than most from “group think” or “neuro-normal”. Indeed, Judge Clarkson Palomares’ case underlines this very problem.

Judge Clarkson Palomares (who had dyslexia) brought a disability discrimination challenge against the justice secretary over her struggles to secure reasonable adjustments (failing to provide voice recognition software).

The UK Government was criticised by the Employment Tribunal for a 'lack of coordination and pre-planning' and were found to have discriminated against her under the Equality Act.

Matters are not helped by the fact that the language of our current anti-discrimination legislation is inherently negative – usually prohibiting an act rather than calling for positive action. So effectively promoting positive discrimination in the form of recruitment of workers from a neuro-diverse background (as Bernick calls for) is not something we are particularly familiar with in the UK. While we know there is protection under the Equality Act, as Judge Clarkson Palomares’ case demonstrates, this is only if  the individual meets the requisite criteria of having a disability”[1], and they may not always do so.

If they meet the criteria then the employer would have an obligation to consider “reasonable adjustments”. While this is a rare “positive” obligation under our anti-discrimination framework, the conations for a neuro-divergent are far from positive as the “impairment” which would prevent them from working in a “neuro-normal” way is assessed by reference to what they can’t do rather than what they can.

I would also question whether a neuro-divergent candidate would even consider themselves as “disabled” or seek the protection of the Equality Act, or trigger the positive obligation to make adjustments.

I know my son (who has Developmental Co-ordination Disorder aka Dyspraxia) is unlikely to consider himself as having a disability. I also know that he is unlikely to pass the majority of traditional recruitment entry tests as that’s not how his brain is wired.

So you can see how many may be failing at the recruitment stage, either because they don’t see themselves as “disabled” or they don’t meet the criteria of having a “disability”. Indeed, my son would say that it’s me who is “impaired” – not him.

I feel strongly that the law, and the legal profession, has a significant part to play in changing attitudes and we can start by changing the terminology used in legislation. For me it is archaic and as far as the neuro-diverse community is concerned it is not fit for purpose.

We should also recognise that if we are genuine in wishing to encourage a neuro-diverse world and workplace, the concept of positive discrimination should be encouraged, strengthened and legalised.

We need to start realising that the wavelength the majority of us are tuned to is not the only frequency out there.

[1] An impairment having a long term, adverse affect on individual’s ability to carry out day to day activities – meaning more than trivial; having to last/likely to last 12 months’ or more.

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