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The Inclusion Summit returns for a fifth year!
Employment tribunal claims referencing neurodivergent conditions have almost doubled since 2020, and this upward trend shows no sign of slowing. Many employers feel uncertain about their legal obligations, how to minimise risk, and how best to support neurodivergent colleagues. This article outlines recent trends, the legal framework, and practical steps you can take.
Analysis by Irwin Mitchell shows that in 2020 there were 265 recorded tribunal cases involving neurodivergent conditions. By 2025, this had risen to 517 cases, an increase of around 95% in five years. There has also been a year-on-year increase of almost 19% between 2024 and 2025, with the past six months recording the highest number of cases. This demonstrates the accelerating pace at which neurodiversity-related claims are emerging.
Is neurodiversity always a disability?
Under the Equality Act 2010, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Some neurodivergent employees will meet this definition, others will not. The focus is on the impact of their condition – not the label attached to it. They don’t need a formal diagnosis, and don’t have to expressly tell you about their condition. Their behaviour or abilities may be enough to put you on notice that they may be disabled. This is known as constructive knowledge.
What are your obligations?
Where an employee meets the disability definition, they are protected from discrimination and entitled to reasonable adjustments to ensure they are not placed at a substantial disadvantage compared with non-disabled colleagues. There is no ‘one size fits all’ approach, but adjustments may include providing supportive technology, clearer communication, and adapting the workplace to reduce bright lighting and noise levels.
Recent tribunal decisions illustrate the consequences of failing to make appropriate adjustments. In Mr Halstead v J D Wetherspoons Ltd, the tribunal found that Wetherspoons should have made several reasonable adjustments for Mr Halstead, who was autistic. Dismissing him under a rigid zero-tolerance policy for breaching the employee discount rules – particularly where there was no dishonesty - was deemed disproportionate. The tribunal also held that Wetherspoons should have explained key policies to him on a one-to-one basis, given proper notice of meetings, allowed his mother to attend formal meetings, checked in on his wellbeing, and ensured his HR records were transferred so relevant managers were aware of his disability.
In Mr L Moore v Greene King Retail Services Ltd, the tribunal found that reasonable adjustments, such as providing a Bluetooth headset to help manage written food orders, would likely have enabled Mr Moore, who had dyslexia, to remain in his role as a chef.
Although employees should be consulted about proposed adjustments, the duty to make them rests with the employer. The obligation is to make reasonable adjustments. If an adjustment is not reasonable – and you will need clear evidence to support that – consider alternative options. Keep a clear paper trail documenting your decision-making and rationale.
Written by: Alexandra Addington, Practice Development Lawyer Irwin Mitchell
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