What is neurodiversity?
Neurodiversity broadly refers to variation in human neurocognitive functioning. It is an umbrella term for a range of differences in individual brain function and behavioural traits, covering conditions including Autism, ADHD, Dyslexia, and other differences in ways of thinking, learning and processing information.
There is growing awareness and discussion of the incidence of neurodiversity in the community and the impact in the workplace, and significant legal issues can arise.
Neurodiversity in the workplace
Employees who are neurodivergent may seek adjustments to be made to their work or seek flexible working arrangements to accommodate their condition.
Workplace issues can arise for employers, including possible needs to modify job requirements or KPIs, consideration of the costs of making adjustments, and sometimes the need to manage behavioural issues and interactions.
Conditions that fall under the umbrella term of neurodiversity may attract protections in the workplace under disability discrimination legislation, and there are numerous avenues that could be available to employees if they feel that they have suffered discriminatory treatment because of their neurodivergence, and their workplace rights have been adversely affected.
They include taking action under the Disability Discrimination Act 1992 (Cth), the disability discrimination provisions of the Equal Opportunity Act 2004 (Vic), the Fair Work Act 2009 (Cth) (under general protection provisions or possibly in the context of unfair dismissal), or the Work Health and Safety Act 2011 (Cth) or Occupational Health and Safety Act 2010 (Vic) in relation to the obligation on all employers to ensure the health and safety of employees and other workers, so far as is reasonably practicable.
Employer responsibilities
The Disability Discrimination Act 1992 (Cth), for example, may oblige employers in effect to make adjustments in the workplace to accommodate an employee’s disability to enable them to perform the inherent requirements of the job, being adjustments that do not place an unjustifiable hardship on the employer.
In the case of neurodivergent employees an employer should consider:
Is the employee’s neurodiverse condition a disability in medical terms?
What are the inherent requirements of the work (which may require a job analysis, and a clear and current position description)?
What are possible adjustments? Do they impose an unjustifiable hardship?
Assessment should always be conducted on a case by case basis. A medical diagnosis should be obtained to understand the condition of a neurodivergent employee.
An employer should request the employee’s consent to obtain medical information from a treating medical practitioner who is in a position to be able to understand the requirements of the employee’s role and to recommend possible adjustments that may be required, and that information should inform decision-making and aid the management of legal risks to protect health and safety for all in the workplace.
Key considerations for employers are:
What is the person’s medical diagnosis?
Is there a current position description and KPI’s that identify clearly the inherent requirements of the person’s job?
Is it possible to make adjustments without unjustifiable hardship to accommodate the person’s condition so that they can adequately perform the inherent requirements of the job?
Is the workplace safe for all employees, so far as is reasonably practicable?
Chris Molnar, Partner and Rod Felmingham, Special Counsel
Kennedys
