Managing Neurodiversity: Legal Duties, Reasonable Adjustments and Best Practice

Neurodiversity in the workplace has been much discussed over the past few years. Despite this, it may come as a surprise to some employers that neurodevelopmental disorders such as ADHD (attention deficit hyperactivity disorder) or mental disorders such as OCD (obsessive-compulsive disorder) may qualify as disabilities and therefore may be covered by the Equality Act 2010.  

Under the Equality Act, a disability is:  

• ‘A physical or mental impairment 

• Which has lasted or is likely to last 12 months or more or is recurring 

• Which has a substantial and long-term adverse effect on 

• An ability to carry out normal day-to-day activities.’  

Importantly, particularly for employers, this definition does not require a formal diagnosis. Employers should focus on whether an impairment has a substantial and long-term adverse effect on day-to-day activities, rather than requiring a formal diagnosis as a precondition.   

This is particularly important because, following this definition, a person who fulfils the above criteria is and will be considered a disabled person for the purposes of the Act’s protections, including when taking a complaint to an Employment Tribunal; a lack of formal diagnosis does not prohibit bringing a claim. Employers are legally required to make reasonable adjustments to alleviate the impact of the condition on the employee which could include changes to duties, hours, provision of equipment, or even a new role if one is available and suitable.  

According to ADHD Scotland, only between 1-2% of people in Scotland have a diagnosis of ADHD, though at least 5-7.5% of the population will have it. A report produced by SPICe (The Scottish Parliament Information Centre) in 2025 estimated that between 10-15% of the population of Scotland is neurodivergent, a term encompassing autism, ADHD, OCD, Tourette syndrome, dyspraxia, dyslexia and dyscalculia, for instance. From the outset, it may be more apparent how some of these conditions may impact the day-to-day life of an employee in certain industries, whilst for others it may present more of a challenge to identify the impact.  

There are a number of groups within Scotland that work to support those with ADHD and other such disorders as discussed. According to the 2025 report of one of these societies, ADHD Right Now, some areas in Scotland have a seventeen-year waiting list for a formal diagnosis through the NHS. SPICe estimated that, as of March 2025, there were 23,000 adults waiting for a neurodevelopmental assessment in Scotland, though they cited an average maximum waiting time of three and a half years. Anecdotally, it is believed that this backlog, and therefore the extensive wait time for a formal diagnosis, has only increased. Therefore, the expansive definition of the Equality Act on what is considered a disability, including the high number of individuals who may be waiting for a diagnosis – an incredibly long time, depending on where they are in Scotland, for ADHD, certainly – may refer to a far broader category of employees than at first an employer might suspect. 

The issue of what may be discriminatory conduct towards someone with ADHD can be broader than it seems. In one recent case, a software engineer at Roke Manor Research with ADHD experienced, in response to ADHD-related behaviours, expressions of ‘non-verbal frustration’ including sighing and exaggerated exhalations by a more senior individual. Upon taking his claim to the Tribunal, this behaviour was found to have formed part of a pattern of discriminatory behaviours which created a degrading and humiliating working environment, ultimately amounting to unlawful discrimination arising from his disability. Whilst these ‘non-verbal frustration’ reactions were not the only discriminatory behaviours experienced, the Tribunal did consider them as part of this pattern.  

Discrimination, therefore, can arise from more subtle and interpersonal interactions within the working environment than simply refusing to make reasonable adjustments. The behaviour of managers, in particular, ought to be conscious, emphasising the importance of understanding what disabilities like ADHD, which may be hidden and not always obvious, may involve. Whether this involves a consultation with the individual or some research and an understanding attitude may depend on the situation.  

Even within the employment context, who can be discriminated against is fairly broad.  Equality protections extend to not only employees and workers, contractors and self-employed persons hired to do a job, and former employees, but also people applying to roles. In another recent matter waiting to be brought before a Tribunal finally, an applicant to a role at Haven Leisure Limited with ADHD and autism was determined to be ‘disabled’ for the purpose of bringing a discrimination claim.  

Moreover, even instances where an employee manages their condition with medication and coping mechanisms does not mean that they are not protected by the Equality Act; the effect of medication is ignored in assessing whether an employee is disabled. 

Employers have a duty to make reasonable adjustments to accommodate disabled employees, designed to remove or reduce disadvantages relating to their disability. Examples for employees with ADHD can include adjustments like emailing instructions rather than verbally explaining them, wearing headphones or working in or having access to a quiet space with minimal distractions, considering flexible working, and adopting software such as calendar or reminder systems to make timeliness and achieving deadlines more feasible. ADHD UK provide a list of suggested adjustments available online, though adjustments should be made in discussion with the individual themselves.  

Reasonable adjustments must be made when: 

• Employers know or could reasonably be expected to know that someone is disabled; 

• A disabled staff member or job applicant requests adjustments; 

• Someone who is disabled is having difficulty with any part of their job; and 

• Someone’s absence or sickness record or delay in returning to work is because of, or linked to, their disability.  

Employers have a duty to make sure others do what is required for a reasonable adjustment to be successful. An example of this may be where an employee with ADHD requests that information is presented to them in an email format in addition to any verbal instructions that may be provided. Employers would have a duty to ensure that this is adhered to throughout the organisation.  

What is considered reasonable is dependent on the situation. There cannot be the same expectations of reasonable adjustments across all industries and employers. Instead, reasonableness is determined based on the role the employee holds and the size or capacity of the business itself. Therefore, there is no blanket rule or adjustment that is a hard and fast rule for an employee with ADHD, for instance.  

Employers and employees ought to consider reasonable adjustments within the context of their employment, given the needs of the individual, the role and the business.  It would not be reasonable to remove a core duty from the role entirely. For example, an employee with ADHD working in a call centre might be provided with adjustments such as written follow-up instructions, additional breaks, noise-reducing equipment and so forth, but it would be unlikely to be reasonable to remove all telephone work altogether. Though this adjustment may be reasonable in another role at another employer, taking phone calls is a fundamental duty of a call centre employee.   

Reasonable adjustments must be made when an employer knew or ought reasonably to have known that the employee was disabled. This is a fairly broad requirement which could cause issues should employers have, for instance, been informed that an employee suspected they may have ADHD but were awaiting a diagnosis, and yet failed altogether to make adjustments. This is another point at which managerial training is vital, as the mention of potential or suspected ADHD prior to diagnosis may put the employer in the position where they ought to have known.  

The Equality and Human rights Commission Code states that where an employer does not know if an employee is disabled, it must do ‘everything [it] can reasonably be expected to do’ to find out, including proactively enquiring with the employee.  

An example case brought before the Tribunal was A Limited v Z, where the employer was held to have constructive knowledge of a disability due to the employee’s repeated absences, despite the employer enquiring somewhat as to the reasons for the absence. Though the EAT (Employment Appeal Tribunal) found A Limited was not liable for questions that, had they been asked, would likely have been answered dishonestly in terms of Z’s disability, they did find it understandable that those with certain physical or mental health issues might conceal them from their employers due to feelings of embarrassment or concerns with external perception.  

Though A Limited were ultimately not liable on appeal, this case indicates the extent to which constructive knowledge, or knowledge that the employer ought to have held, is and should be a concern for employers. Employers should make appropriate enquiries, ensure managers are appropriately trained to spot signs of mental health deterioration, focus issues, struggles with timekeeping and memory, for instance, in the case of ADHD, in order to allow them to check in on employees.  

It should be noted that discussions from a managerial level taking place on platforms such as Teams or Slack, as well as emails, discussing a potential or suspected disability may be used as Tribunal evidence. These messages at a managerial level, whether conjecture or otherwise, may constitute a situation where the employer was found to have knowledge, whether constructive or actual, of the disability. So, for instance, where a manager messages HR and suggests that an employee is behaving as if they have ADHD, this may be enough for a Tribunal to find the employer knew or should’ve known of the potential disability disadvantages. In a situation like this, the manager also ought to also engage in an appropriate and sympathetic conversation with the employee to understand better whether these behaviours may have been caused by ADHD or a similar disability, and how best to accommodate them within the working environment.  

The aim of reasonable adjustments is to remove or reduce the disadvantage experienced by the individual as a result of their disability. This is another reason that there can be no blanket rule imposed, as what mitigates disadvantages for an individual differs from person to person depending on their own personal experience; no two people experience ADHD in exactly the same way. 

The EHRC Code of Practice give a list of examples of general reasonable adjustments, and  ACAS also provide some case study examples of how employers might be accommodating for employees with disabilities, including reasonable adjustments for ADHD and autism as well as OCD, which are both useful and practical scenarios.  

Other than implementing reasonable adjustments, employers should also look to training and raising awareness within their organisations. To avoid situations like the above, where sighing and nonverbal communication created an unsafe and discriminatory working environment, managers and other employees should be made aware of appropriate standards of behaviour and of common symptoms of disabilities. Managers should undergo some training to allow them to know what to look out for and how to support employees with ADHD and how to implement and maintain the requisite adjustments across teams. This includes raising awareness around the fact that individuals without a formal diagnosis can be considered disabled, some disabilities are not obvious, and the fact that workplace culture and interpersonal interactions can contribute to a discriminatory environment. 

Having a proactive approach is also recommended. Take a look at working systems and areas of working life that could easily be adjusted ahead of time, rather than waiting for issues (and therefore, potentially, claims!) to arise.  Keep an open mind and be willing to accommodate or at least consider accommodating employees raising issues surrounding appropriate ADHD adjustments, even where these issues are raised without a formal diagnosis or in a more casual or colloquial setting. 

Ultimately, these adjustments and the requirements on the employer to implement them are aimed at creating a level playing field in the workplace for everyone. Taking a proactive and open-minded approach to disability adjustments and education should result in the best outcome for everyone involved.