We are lucky enough to work with a variety of clients and we find that certain sectors tend to employ people with some challenges which they then feel ill-equipped to manage. One of the questions we are often asked is whether there are things which an employer could or should have in place to allow their autistic employees to do their jobs to the best of their ability.
People on the autistic spectrum have a great deal to offer to employers in terms of very unique skills however often find it hard to stay in school and to find employment. The National Autistic Society (NAS) believe that an autism confident business will:
- Attract the right people
- Offer higher productivity with reduced cost
- Attract employees with technical ability and specialist skills and interests such as in IT
- Attract those with detailed factual knowledge and an excellent memory
- Find retention of staff easier
It can be easier to manage for employers once they are aware of the law in this area and how to act within it. It is there to take care of the wellbeing of those with a protected characteristic rather than to catch employers out.
Is Autism a Disability?
The Equality Act 2010 protects applicants and employees against discrimination where there is a protected characteristic, those on the autistic spectrum would usually be able to satisfy the legal definition of disability. A disability is set out as; “…physical or mental impairment… which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities“.
It’s worth noting that a person doesn’t need to have disclosed that they are on the autistic spectrum to be discriminated against as it can occur by perception too. Where practicable, making reasonable adjustments early on can prevent the person from having poor mental health and disrupting their employment later down the line.
How does the law protect autistic employees?
Employers need to ensure they are not directly or indirectly discriminating.
Direct discrimination – for example not employing someone due to them being on the autistic spectrum and therefore assuming they will not be able to fulfil the role. This cannot be decided objectively.
Indirect discrimination – This is where a policy or procedure is in place that puts the person with the protected characteristic at a disadvantage. This can be decided objectively however the policy or procedure which falls into question must be seen to be a proportionate mean of achieving a legitimate aim. They may think they have adjustments in place however without a very acute reading of the person the adjustments may not be placing the autistic employee on equal ground.
Duty to make reasonable adjustments – this is for those who have a protected characteristic, to enable them to do their job. This will apply even where the employee does not come forward to ask for certain adjustments. Adjustments for those on the autistic spectrum will need to be considered heavily based on consultation with the individual as opposed to accessibility ones for example, where the needs of a wheelchair user may involve one-off environmental adjustments that can often be pre-empted without needing to provide for very specific needs.
Reasonable adjustments for autistic workers
Making adjustments for autistic employees involves learning about autism rather than being heavily costly, meaning the process can be very enriching for the employer and less time consuming to put in place. It’s impossible to pre-empt what an autistic employee may need to better enable them to complete their job, so increased one to one’s with the line manager may be needed. The person may not recognise that adjustments need to be made. Adjustments can be said to fall into two categories in this situation:
Sensory – for example, the colours on the computer or a particular noise that happens in that area. The person may need to sit in a quiet area of the office or you could provide them with noise-cancelling headphones
Policy – for example, flexible hours, target/KPI adjustments and extra or split break time
www.autism.org – makes clear recommendations regarding understanding how those on the autistic spectrum can view the workplace:
- Clarify expectations of the job
- Provide training and monitoring
- Make sure instructions are concise and specific
- Ensure the work environment is well-structured
- Regularly review performance
- Provide sensitive but direct feedback
- Provide reassurance in stressful situations
- Support your staff member to prepare for changes
- Ask about sensory distractions
- Help other staff to be more aware
Consequences of failing to provide a suitable work environment
An employee can make a claim to an employment tribunal for disability discrimination and constructive unfair dismissal in some cases. The costs of defending such claims are huge as is the disruption to the business. Putting in place simple measures such as those mentioned above will enable you to get the best out of your employees and protect your business.
For advice on any employment law issue or to speak to one of our employment law solicitors or HR Advisors, contact us today.