Neurodivergence, ‘over-diagnosis’ and the workplace: why HR must focus on impact, not labels
Debates about neurodivergence have taken on a new tone in the past year. Concerns about the ‘over-diagnosis’ of conditions such as ADHD and autism have increasingly entered political and media discussion. Late last year, UK Health Secretary Wes Streeting warned that the rising number of diagnoses risked medicalising ‘normal behaviour’, signalling a growing scepticism in some quarters about the expansion of neurodevelopmental labels.
More recently, media coverage of claims that some junior doctors say they have a disability in the form of ADHD in order to request reasonable adjustments and avoid night shifts has added further fuel to the debate. Stories like this can quickly morph into a wider narrative that neurodivergence is being exaggerated or strategically deployed in the workplace.
For HR professionals, however, the legal and practical position is far more straightforward than the headlines might suggest. Employers should not become distracted by arguments about diagnosis rates. In employment law terms, the question is whether an employee has an impairment that affects their ability to carry out day-to-day activities – and what reasonable steps can be taken to reduce that disadvantage.
Is neurodivergence a disability?
‘Neurodivergence’ is an umbrella term that covers conditions such as autism, ADHD, dyslexia and dyspraxia.
Whether an individual is legally disabled depends on the definition set out in the Equality Act 2010. A person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Normal activities include communication, concentration and social interaction. An effect will be ‘substantial’ if it is more than minor or trivial.
In practice, many neurodivergent people will meet the legal definition of a disabled person, bringing into play legal protections, including the duty to make reasonable adjustments.
Diagnosis is not the legal trigger
Employment tribunals focus on the impact of the impairment, not on whether there is a formal medical diagnosis when assessing whether a person is disabled under Equality Act 2010.
This point is particularly important in the current climate. Waiting lists for autism and ADHD assessments in the NHS can stretch to years. If employers insist on a formal diagnosis before taking action, they risk leaving employees without support for prolonged periods.
Legally, that approach is flawed. If an employee informs an employer that they are experiencing substantial and long-term difficulties linked to a condition, the employer’s duty to consider reasonable adjustments may already be engaged.
In other words, employers should respond to the impairment and its effects, not to a label.
What tribunals say about neurodivergence as a disability
Employment tribunal decisions repeatedly underline the importance of focusing on practical disadvantage.
In Sherbourne v N Power, an employee with Asperger’s syndrome struggled to work in an open-plan office with a busy walkway behind him. The tribunal found that the employer had failed to make reasonable adjustments to the physical environment.
Tribunals have also emphasised the need for caution when disciplining behaviour linked to neurodivergence. In Borg-Neal v Lloyds Bank Plc, a dyslexic employee was dismissed after using a racial slur in full during a training session while asking how managers should address such language. He argued that his dyslexia affected his ability to quickly retrieve alternative phrasing. His claim for discrimination arising from disability succeeded, receiving compensation approaching £500,000.
Selection processes can also require modification. In Jandu v Marks & Spencer, a dyslexic employee was selected for redundancy partly due to low scores for written communication. The tribunal found that failing to adjust the criteria placed her at a disadvantage and amounted to a failure to make reasonable adjustments.
The HR response to the ‘backlash’
The current debate about over-diagnosis may continue, but HR teams should resist being drawn into it.
Instead, the focus should remain on three core principles:
- Assess the impact on the individual, not the label attached to it. Utilise support from occupational health where appropriate.
- Consider reasonable adjustments early, even where diagnosis is pending. But remember that the duty is not unlimited – the employer only needs to make adjustments that are ‘reasonable’. If the employer has good reasons why a certain adjustment would not be reasonable for the business to implement (perhaps because of cost or operational difficulties) then it will not need to make that adjustment.
- Train managers to understand neurodivergence and respond appropriately.
Ultimately, the legal framework is clear. Employers are expected to engage with the realities of how employees experience work – not to arbitrate whether a condition is sufficiently fashionable, controversial or medically contested.
In a climate of growing public debate, HR’s role is therefore not to police diagnosis. It is to ensure that workplaces remain fair, lawful and responsive to the people within them.