Neurodiversity at Work - Policies, Adjustments and the Rising Tribunal Risk

Employment tribunal cases referencing neurodiversity have risen sharply, with analysis by law firm Irwin Mitchell finding they nearly doubled between 2020 and 2025, to over 500 a year, led by autism and ADHD. The claims cluster in the same places: recruitment processes that could not flex, and disciplinary processes that punished traits instead of adjusting for them.

The legal framework is not new, but the expectations around it have moved, helped by dedicated Acas guidance on neurodiversity published in 2025. This guide covers when neurodivergence counts as a disability, where the duty actually bites, what the leading cases teach, and what a workable policy contains.

The Legal Frame at a Glance

When Neurodivergence Counts as a Disability

Autism, ADHD, dyslexia, dyspraxia and related conditions are not automatically disabilities. They qualify when they meet the section 6 test: a substantial and long-term adverse effect on normal day-to-day activities, with long-term meaning twelve months or lifelong, which lifelong conditions typically satisfy.

The practical trap is waiting for a diagnosis. Acas is clear that support should not be gated on formal diagnosis, and the legal knowledge test asks what the employer could reasonably have been expected to know, not what a report confirmed. Our guide to disability in the workplace covers the wider framework.

The Adjustments Duty Reaches Recruitment

In AECOM v Mallon, a job applicant with dyspraxia asked to apply by phone rather than through an online form, and HR insisted on the form. The Employment Appeal Tribunal upheld his claim: the online application was a provision putting him at a substantial disadvantage, and the employer had constructive knowledge because it should have made reasonable enquiries about his difficulty.

Two lessons travel well beyond recruitment. The duty covers applicants as well as employees, and it includes a duty to ask, so a process that offers alternative formats and a named contact for adjustment requests is both fairer and safer than one that routes everyone through a single rigid funnel.

Discipline and Performance Are Where Claims Arise

Section 15 catches unfavourable treatment because of something arising from a disability. In Borg-Neal v Lloyds Banking Group, a manager with dyslexia was dismissed over words used while asking a genuine question during training; the tribunal found the dismissal both unfair and discriminatory, with the dyslexia contributing to how the question came out, and the award exceeded £470,000.

Acas's guidance points the same way: consider whether conduct or performance concerns are linked to neurodivergence before applying the disciplinary policy, and consider whether a formal process is the right tool at all. That mirrors the lesson of the McRobbie case: documented adjustments that stop being applied are evidence against you.

What Adjustments Look Like in Practice

The Acas adjustments guidance is deliberately practical: noise-cancelling headphones or quiet spaces for sensory load, written instructions broken into steps, assistive software, visual planners and regular check-ins, and interview alternatives such as questions in advance or work trials.

Most cost little; the Access to Work scheme can fund the rest, although applicants should expect delays, with a substantial backlog and processing times of months reported through 2026. The pattern across all of them is the same: agree adjustments through conversation, record them, deliver them and review them.

What a Neurodiversity Policy Should Cover

A workable policy commits to supporting neurodivergent staff without requiring diagnosis, names a confidential route for raising needs, sets out how adjustments are agreed, recorded and reviewed, and requires recruitment processes to offer alternative formats. It also instructs managers to pause and consider neurodivergence before formal performance or disciplinary action, and to involve HR where it may be relevant.

Language matters enough to state: many neurodivergent people prefer identity-first language and may not identify as disabled, and the policy should let people describe themselves rather than labelling them.

Neurodiversity Policy and Procedure Writers

Policy Pros writes neurodiversity and inclusion documentation as a working set: the policy, an adjustments procedure aligned to Access to Work, recruitment checklists and manager guidance. Our neurodiversity and inclusion policies service covers the package, and our HR policy writing service ties it into your wider framework.

If your adjustments practice currently lives in individual managers' heads, contact us for a free quote, or call 020 3951 2875.