Navigating neurodiversity and social mobility in the workplace

Taking action to improve workplace diversity has in recent years been increasingly recognised as an important ingredient for business success and not just a legal or compliance tick box exercise.

Two emerging areas of focus that are gaining momentum in 2024 in the drive for organisations to create truly diverse and inclusive workplaces are in relation to neurodiversity and social mobility.

There are various similarities that can be drawn between disadvantages suffered in the workplace relating to neurodiversity and class (specifically having a lower socio-economic background). Both are often hidden statuses, and there are multiple benefits for employers in taking steps to help employees overcome these disadvantages. How the law interacts and intervenes to create workplace inclusion for neurodiverse employees and to promote social mobility, however, differs significantly.

Neurodiversity and employment law

Autism, attention deficit hyperactivity disorder (ADHD), dyslexia, dyspraxia and other neurodiverse conditions that affect cognitive functioning are all likely to satisfy the definition of a disability under the Equality Act 2010. This means that neurodiverse employees are likely to be afforded some protection under employment law.

Specifically, under the Equality Act 2010, there is legal protection against acts of discrimination and harassment of employees in relation to the protected characteristic of disability (whether on account of neurodiversity or otherwise). Employers are also under a positive obligation to consider and make reasonable adjustments where relevant to ensure that neurodivergent employees can perform their duties on an equal footing with their neurotypical colleagues. The nature of these adjustments may vary depending on the specific needs of the individual, but common examples might include flexible working arrangements, communication adjustments and work environment modifications.

This does not mean, however, that inclusion and equality is guaranteed. Of course, individuals may hide their neurodiversity or even not be aware of it themselves. It may be that an individual’s neurodiversity does not manifest itself in a way that satisfies the definition of a disability, or their employer may not be aware of it and how it may impact the employee in their role.

Further, whilst the law prohibits unlawful discrimination, it does not go as far as permitting positive discrimination (save for in very limited circumstances). The main consideration for employers is to ensure that they fulfil their duty to make reasonable adjustments, following a discussion with the employee on the impact of their neurodiversity.

Social mobility and employment law

The concept of social mobility centres on an individual’s ability to overcome socio-economic barriers, emphasising the importance of access to education, career opportunities, and resources for personal and professional advancement. This is not an area where employment law specifically intervenes to promote equality, despite campaigns from certain bodies to include it as a “10^th protected characteristic”. In the UK there is no protected characteristic of class, or which specifically focuses on affording protection to those with a lower socio-economic background.  

Part of the difficulty in developing legal protection in this area lies in problems with a definition. A lower socio-economic background can be attributed to a number of factors, including parental wealth and occupation, a state school education and/or not having attended university (or being the first generation in the family to attend university). In addition, there are significant regional disparities within the UK. Unlike neurodiversity, a person’s social economic status can change and this all makes it very difficult to clearly define. There is also evidence that class disadvantages can be exacerbated when the individual also has other protected characteristics which makes this area even more complex to navigate.

So far, however, in England, legal intervention is limited to guidance such as the Social Mobility Commission’s Socio-Economic Diversity and Inclusion: employer’s toolkit. Section one of the Equality Act 2010 also places a limited duty on public bodies to consider socio-economic disadvantage in their strategic policies, however, this duty has not been brought into effect in England and was only implemented in Wales in 2021.

Notwithstanding the limited legal framework, campaigns and initiatives to break the ‘class ceiling’ from trade unions, regulators and other organisations, such as the 93% club, are raising the call for action and an increasing number of employers are taking note. Notably, momentum is gathering for progress in this area in the financial and professional services sectors, in particular following a report published in 2022 by a taskforce led by the City of London Corporation.

Join us for a free webinar on 16 January to explore these issues in more detail and look out for part two of this article, looking at some practical strategies for tackling them.