DUTY BOUND
Neurodiversity has moved firmly into the mainstream workplace conversation. Increasing numbers of people are being diagnosed – or self-identifying – with conditions such as ADHD and autism. Others are choosing to disclose diagnoses they may have kept private for years.
Yet despite this growing awareness, many employers still have the same question: does this mean they’re legally disabled? And if so, what does that mean for how they’re treated at work?
Under the Equality Act 2010, individuals who meet the legal definition of ‘disabled’ are protected from discrimination, harassment and victimisation. Employers also have a duty to make reasonable adjustments to remove barriers – for example, adapting workspaces, changing working patterns or tweaking performance management processes – so that people are not disadvantaged because of their condition.
The challenge is that not everything automatically qualifies as a disability. Some – like cancer, HIV and multiple sclerosis – are covered from the moment of diagnosis. ADHD and autism are not. Whether they fall under the legal definition depends entirely on how they affect an individual in real life.
The Equality Act offers a clear definition of disability. To qualify, a person must 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’.
Each element of that definition matters:
- Impairment: ADHD, autism, depression and anxiety can all be classed as mental impairments.
- Substantial: The impact must be more than minor or trivial.
- Long-term: The effects must have lasted – or be likely to last – at least 12 months.
- Day-to-day activities: These include everyday tasks like communicating, concentrating, coping with change, following instructions or travelling.
The crucial point? A diagnosis alone is not enough. Two people with ADHD may present completely differently – one may be significantly affected, another barely at all. It’s the real-world impact on daily functioning that counts.
A recent case before the Employment Appeal Tribunal (EAT) – Stedman v Haven Leisure Ltd – shines a useful light on how this plays out.
Mr Stedman applied for a seasonal role and disclosed that he had ADHD and autism. After he was rejected, he brought a disability discrimination claim. The first tribunal dismissed it, arguing that because he had completed a degree, performed in public and managed daily life, his conditions did not have a ‘substantial adverse effect’.
The EAT disagreed. It ruled that the tribunal had applied the wrong legal test and sent the case back for reconsideration. In doing so, it highlighted several principles employers would do well to remember:
- Only one substantial impact is needed. Difficulties in just one aspect of life may be enough to meet the definition.
- Strengths don’t cancel out challenges. Being highly capable in some areas does not mean difficulties elsewhere can be ignored.
- The right comparison is with and without the impairment. The question isn’t how someone compares with the average person – it’s how they’d function without the condition.
- A diagnosis can support a claim. While not essential, it often reflects significant functional impact.
This ruling serves as a reminder to look beyond surface appearances. People may appear to ‘cope’ on the outside, while still facing substantial barriers that affect their day-to-day life.
So, what does this mean in practice?
- ADHD and autism often qualify as disabilities. They can affect communication, concentration, emotional regulation and sensory processing – all of which can have a substantial, long-term impact.
- A formal diagnosis isn’t required. Many people wait years for an assessment, so a lack of one doesn’t mean they’re not legally protected.
- The duty to make adjustments starts early. It applies from the recruitment stage, not just once someone is in post.
- Focus on the individual, not the label. The question is how the condition affects that person, not whether they ‘seem fine’.
- Consider contractors too. Discrimination law may still apply if someone is providing services personally or under your control.
Getting this right isn’t just about staying on the right side of the law – it’s also about culture. When employers understand the realities of neurodivergent conditions and respond thoughtfully, they don’t just avoid tribunal claims, they create workplaces where talented people can thrive. And in a labour market where attracting and retaining skilled people is harder than ever, that matters.
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