What is Neurodiversity?
Neurodiversity refers to the natural differences in how people’s brains work.
Neurodivergent means having a mind that functions in ways that diverge from dominant societal norms.
Neurodivergence is the reason why a person’s mind diverges from the societal standard. This includes conditions like ADHD, autism, dyslexia etc.
In 2024, research conducted by Bank of Ireland and Red C revealed that nearly 1 in 10 adults personally identify as being neurodivergent as compared with a global average of approximately 15-20%. This is a significant proportion of the workforce and employers should be aware of their duties – to support these employees.
Legal duties under the Employment Equality Acts 1998 to 2015
Duty not to Discriminate
It is well established in Ireland that neurodivergence conditions are protected under the Employment Equality Acts 1998 to 2015. This means that employers have a legal duty not to discriminate against neurodivergent employees or candidates in relation to access to employment, participation and advancement in employment and training.
Reasonable Accommodations
The Acts also place an obligation for employers to take appropriate measures to enable neurodivergent persons to be on an equal footing with other colleagues. The employer’s duty is to assess whether the employee could perform the essential functions of the role after appropriate measures are put in place as opposed to assessing the employee’s ability without such measures.
The obligation to provide reasonable accommodation can only be properly satisfied where an employer has carried out an assessment, whether that is medical, ergonomic or occupational, in order to see what appropriate measures can be put in place. In practice, this means employers should examine whether changes to work organisation, task allocation, communication methods or technology could enable the employee to perform their role. An exception to this obligation arises where such measures would impose a disproportionate burden on the employer but for larger corporate employers, this will be a high threshold. Additionally, many of the adjustments that are helpful to neurodivergent employees often do not incur significant costs e.g. reducing light and noise stimulants, adapting management styles, allowing for flexible work arrangements.
Recent Case Law
Recent WRC decisions reveal how Adjudication Officers scrutinise employers' actual practices around reasonable accommodation and the below themes stand out.
- Employers must lead the reasonable accommodation process
A recurring theme in recent decisions is that employers are expected to take a proactive role in identifying and implementing reasonable accommodations.
In A Clerical Worker v A Healthcare Employer (ADJ-00053987), a clerical officer with autism sought to return to work after being certified fit by both Occupational Health and his GP. The employer delayed his return for more than eight months while awaiting a risk assessment and required the employee to arrange this assessment himself. The WRC held that the employer had failed to provide reasonable accommodation. The Adjudication Officer made clear that identifying and assessing workplace risks is the employer’s responsibility, not the employee’s. By placing the burden on the employee and delaying his return to work, the employer effectively created additional barriers. The employer was ordered to pay €5,000 in compensation and to review its policies for employees with neurodiverse conditions.
The decision highlights a practical point for employers. When an employee signals that they may need support (whether linked to neurodiversity or otherwise), the employer should take the lead in exploring accommodations and documenting the process. Leaving the employee to navigate the system alone may lead to a breach of the duty to provide reasonable accommodations. - Focus on the individual, not the diagnosis
Another clear message from the WRC is that accommodations must be assessed in terms of its practical impact on the individual employee.
In Mary Tracy v Smurfit Kappa (ADJ-00046740), the employee suffered from Lupus, the WRC found that the employer had failed to properly assess the employee’s individual needs before concluding that her role was no longer viable. The Adjudication Officer called the employer’s failure to undertake a work site assessment, despite it being offered by the occupational therapist, “a missed opportunity”. The employer also failed to consult meaningfully with the employee about possible adjustments. The Adjudication Officer awarded €64,000 in compensation for both the discriminatory dismissal and failure to provide reasonable accommodation.
Although the employee in the above case did not have a neurodivergent condition, the principles established by the WRC are particularly relevant to neurodivergent employees. Conditions such as autism, ADHD and dyslexia affect individuals in different ways. Two employees with the same diagnosis may require very different workplace adjustments. For employers, this means the starting point should always be consultation with the employee to understand the specific barriers they are experiencing, rather than assumptions about the condition itself. Employers should refer employees to an occupational health specialist and consider any medical advice on the suitable forms of reasonable accommodation carefully. - Establishing protected characteristic remains essential
Not every case involving neurodiversity will fall within the scope of the legislation. The employee must still establish that they have a protected characteristic within the meaning of the Employment Equality Acts.
This was demonstrated in Sharon Byrne v Poundland Limited (ADJ-00052367). The complainant frequently described herself as having "OCD" in the workplace. However, the Adjudication Officer drew a distinction between having a formal diagnosis from a qualified medical practitioner and having "idiosyncratic traits which are perceived to fall within the OCD family." The only medical evidence was a GP report stating the complainant had "symptoms suggestive of OCD”. The complainant had never been assessed by a Consultant Psychiatrist or Clinical Psychologist. Crucially, the Adjudication Officer observed that the complainant described her love of order, symmetry and cleanliness as giving her "great satisfaction" to perform, rather than causing mental anxiety or distress when prevented from doing so. The Adjudication Officer concluded that, on the evidence, the complainant's self-description reflected personality traits and did not amount to a protected characteristic within the meaning of the Acts. As a result, the claim failed.
For a discrimination claim on the failure to provide reasonable accommodations to succeed, two elements must be present: (1) a qualifying protected characteristic under the Acts, and (2) employer knowledge of that protected characteristic (actual or constructive). That said, employers should approach this threshold carefully. The WRC and Courts recognise that a protected condition may exist without formal clinical diagnosis. Early occupational health referrals help identify appropriate adjustments.
Neurodiversity in the Workplace
Neurodiversity Policy
The 2024 research suggests that just under one-in-five adults who are working believe that their company’s policies and practices support neurodiverse people.
Unfortunately, there can be reluctance among employees to disclose a neurodivergent condition to employers. An inclusive workplace should empower employees to seek supports where required and neurodiversity policies provide a clear pathway to access assessments and supports while protecting employers with a formal documented process showing how they met the legal obligations.
Neurodiversity and Remote Working
Many will be familiar with the Work Life Balance and Miscellaneous Provisions Act 2023 which introduced a right to request remote working for employees. The 2023 Act permits employers to refuse a request for remote working and the rationale for the refusal cannot be challenged. However, if an employee requests remote or flexible working arrangements in order to support a neurodivergent condition, refusal of such a request without showing evidence of a disproportionate burden on the employer could result in a discrimination claim for failing to provide reasonable accommodations.
A Neurodiversity Policy could also assist to provide a separate channel to address such requests outside of the standard process.
What this means for employers
Neuroinclusive practices and environments are not just beneficial for neurodivergent employees and all employees can benefit from an informed and open workplace.
In considering reasonable accommodations for neurodivergent employees, employers may consider practical steps across three areas.
In recruitment: Review job descriptions and avoid vague requirements like "excellent communication skills". Offer alternative interview formats where appropriate.
In management: Adopt a flexible management style to allow for differences in communication, sensory needs and work practices. Focus on outcomes rather than policing working style. Introduce awareness training for managers and staff.
In workplace culture: Encourage open conversations about different working styles. Involve neurodivergent staff in creating company policies and processes. Ensure that appropriate language is used in the organisation around neurodiversity and disabilities. Consider a sensory audit of the physical workplace.
Employers who engage early, consult meaningfully and document their consideration of supports will not only meet their legal duties but will also get the best out of their entire workforce.