The term Neurodiversity encompasses (among others) attention deficit hyperactivity disorder (ADHD), dyscalculia, dyslexia, dyspraxia, Asperger’s, and Tourette’s syndrome. Rightly, there must be a shift away from neurodiverse people being labelled with a ‘disorder’ in a negative and instead welcomed and celebrated for the gifts and talents that they bring to any workplace. However in the workplace, often there is a fear and stigma about employees whose brains work differently which does nothing to help the employee or employer. In this webinar, Robin Watson reviewed the key aspects and best-practice regarding disability discrimination. Robin then focused on Neurodiversity and the importance of HR, Line Managers, and senior leaders being more aware of how to help members of the teams and reduce the risk of claims. Robin discussed: • What is Neurodiversity? • Is there a problem in the workplace? • Best practice to avoid claims • The role of Occupational Health (or not) • Workplace toolkits • Recent case law on neurodiversity • Making a positive step toward inclusivity • Practical tips & ideas Visit https://hrrecruitment.co.uk for more useful HR content.
Unknown Speaker 0:08
Today's webinar about neuro diversity. My name is Amy McLeod and I'm consultant from HR recruit. And I'm joined today by Robin Watson employment solicitor from Lacey solicitors. Robin has a lot to cover in today's webinar. And we'll be sharing his knowledge around neurodiversity, and what to consider in the workplace and practical tips and ideas. We're going to pass you over, there will be an opportunity to ask questions in the chat box at the end. Okay, Robin, over to you.
Unknown Speaker 0:35
Thanks, Amy. And thanks also for your for your help organizing this. So I'm told that we could be about 115 before us because I can't see anybody. So I'll just have to believe that. And that's wonderful. If there is, it doesn't surprise me because with HR, I think if you mentioned Disability Discrimination updates or anything like that, I think we all know, that's probably one of the biggest things we tend to fear quite often. And if you add neurodiversity in there, I can fully understand why it's something that people are interested in, which is great. But it also means I don't know what experience there is in this virtual room. So what I've tried to do is pitch this as best I can to all levels, I'm failing, where there are HR directors here who have Master's experience that's far more than me in dealing with this, and I know everything I want to update, but there may be some Junior ones who are fresh to this. I think if nothing else, and if you know everything, put your feet up and have a blast for an hour and a bit and remind yourself that you're fantastic at what you do. If is anything else, I think just try and take one thing away from this. And they thought one thing like me when I do this a few years ago now is really about broadening your mind and broadening the way you look at HR and the way you deal with people. And a couple of stories I relate to you from from a real life experience. And the reason why this is a subject, which I think he's, I would say is something that we all need to be very aware of. I think it is something as big as mental health. I think it's underplayed. And I think neuro divergence, and we'll come on to those different terminologies plays a far bigger part in our HR world with our people that we look after and manage than we realize. And there are many reasons for that. So one thing I'm passionate about is two or two things. One is HR and employment law and Reiki QA on the other side of it is is the neurological side and personal personality side to HR, what we do, because we are people, we manage people, we lead people and protect businesses and things that go wrong. And neurodiversity, I think is really, really important. So hopefully, in the next 45 minutes or so I'll be able to say concede and say that when you think about this, or did you consider this, and I'm just hoping like me, they'll be suddenly say, Well, I didn't think of that. But actually, I'm gonna go and learn about that or change the way I might view something, we have a lot to get through. So I'm gonna do my very best we are skimming the surface, as you probably expect, I make no apologies. This, I would probably do in a full day's course at a hotel room with tea and biscuits and lunch. But we're wrapping this in 45 minutes. So I'm deliberately skipping over some things. But there's always opportunity with my contact details there. If you want to talk more, or think about something wrong or disagree, that's absolutely fine. All you have to do is email me and we can talk further via email, all of the information you need will be sent out in a few days time. So I'll be sending the links, and the q&a. And hopefully, we'll be sending those out as a cut and paste. And I'll be answering those in more detail as we go along. In the next few days, you should have everything you need, including the links. So you can literally just sit and listen. And if anything comes to mind, please jot it down. And it's anything you want to know more about, please jot it down and do so. And so just in case, you're wondering, who's this clown stuck in front of me what gives him the right to talk to me a little bit about me. So I work for laceys. I'm a partner in the employment team and I had an employment thing there. And predominantly, we act for employers. And we help people like yourselves from all HR levels from HR, middle up to HR D level. And we help older businesses as well develop and deal with HR issues and go along with that can be day to day problems. But also, we deal with the big stuff, we deal with claims, disability discrimination, and all the discrimination claims as well. We deal with individuals and we help individuals. So I'm able, maybe not with what you can't, but I can put two different hats on this. So I can look from a claiming solicitor perspective as what I might be looking at as a claimant lawyer, or I might be looking at from the respondent side of things for the employer and what comes to mind. So everything I'm saying to you today is deliberate. And it's based upon my own experience what I think I want to tell you, and it should help you. So there is a lot to cover.
Unknown Speaker 4:39
He says trying to hurry up so quickly for us to wake up. So there's a bit of a menu there that we're gonna go through. We do have to do a bit of revision, I'm afraid. So this is the revision part for most of us suspect on disability discrimination. And that's simply because when we talk about neurodiversity, the reason we're talking about it is twofold one to give you a positive stance to take away and to remind you or give you something fresh to look at. But the negative side of it is, is to be careful. And the warning I give to all HR clients now, since about 2017, I think it is. All employment tribunal cases are now listed online. Anybody can go in search the employer or the employee, and they can see employment tribunal decisions and employment Appeal Tribunal decisions. And there's no wish to scare you. I'm sure you know this. But one thing I say to people is remember you could be named, it's going to be very rare. If I'm advising the employer or employee that I wouldn't be calling not only the decision making process, but also the HR person who was advising the HR person who was involved, I want to know what they were thinking as well and doing them are not telling me but it's worth asking. So remember that, because we will get pressures in HR. And there are pressures just to get on with it, as we're told don't, we can't you just dismiss them, can't just get rid of them. Let's press on and get the business focus, we're gonna remember we Yes, but also we're professionals. And we've got to follow the law. Because end of the day, we could be named in a case. And I say that to scare you. It's just the reality of where we live in. So we've been looking at the key aspects of disability discrimination. We're looking at neurodiversity. And I can tell you now there is no one accepted universal definition. We'll be going through a couple of those. And I said at the start, when I did this, first of all was is there a problem in the workplace, which is quite negative, is a positive problem in the workplace that we're missing. Because I want to be positive about this and encourage you to look into this more in your workplaces, looking at best practice to avoid claims. And that's generally Disability Discrimination claims, but it fits nicely with neurodiversity as well, occupational health friend and foe, I have my own views, generally speaking, I'm sure you do as well. Sometimes they're not particularly helpful with neurodiversity. neurodivergent individuals, I could be wrong. But the perhaps assumptions are not as confident as we are, in trying to in trying to help us with that, because it's very broad. Workplace toolkits, is something that I want to share with you. And that's really passporting. So it's about passports and people, and giving them a plan of how they can be communicated with what works for them, what are they worried about, with their conditions, couple of recent cases, there are numerous cases on that to do with all sorts of neuro diversity issues, but I'll just add to one very recent one, which you should read, we're looking at making a positive step towards inclusivity. And practical tips and ideas. There's a lot to cover. So I'm gonna whisk through it, as in depth as I can. But let's start with our disability discrimination. But we all know that you can't discriminate against an employee or job applicant, we can stop there. But we go further with the types of claims that can arise. As you all know, we have positive discrimination positive action, which is allowed in favor of a disabled job applicants or employees, so we can treat disabled people more favorably, that is not discriminatory against them or those who aren't disabled. But other than that, we know that discrimination is unlawful at the top of the scale of harm, if you like, and that's thing as a lawyer I look at is what potentially we're dealing with, because direct discrimination under Section 13, the Equality Act is probably the most harmful. Because that cannot be justified, there is simply no lawful excuse for that there is one but that's out there, we won't deal with that today, the generally speaking of dire discrimination is in play, it's going to hurt. Because essentially, what's happening here is you want to say you your employers, or clients are discriminating against somebody because they have a disability simply because of that disability. And that's a serious claim. And that can be many 10s of 1000s, if not hundreds of 1000s of pounds, it's quite rare. In my experience, many claimants will say that big direct discriminated against, but actually what then it comes down to is maybe indirect discrimination under Section 19. And that's simply where you are applying a practice criterion or a policy, keep it as policies easy to understand. And by applying it, you are indirectly discriminated against those with a disability, or other protected characteristics, but affliction disability here. So it's having more of an impact on those with a disability or shared disability and you cannot objectively justify it. Okay, so this is defense to these following ones. And that's objective justification of proportionate means of achieving a legitimate aim. We can't cover that today. If you are confused, and you've not done talking about drop me an email, I can send you some things to help you.
Unknown Speaker 9:13
One that can be missed sometimes, and this sometimes happens with with lawyers as well actually with a section 15 arising from claim and it was neons with equality didn't exist before. And that's where a claim happens because it's based on something that arises as a consequence of disability. And typically that might be dismissing for poor attendance due to the disability. And sometimes that people say what isn't that indirect discrimination? We yes or no, because these two tend to tack together and they're pleaded to the tribunal and the alternative, but it's as a consequence, something arising out of disability will be absence from work due to disability, and that can be a claim under Section 15. So be careful of that one as well. We know if someone is disabled and if they are disabled, as we'll see shortly, then there's a duty or might be duty to make money. adjustments. And remember, it's a might, I think there's a tendency for us all to jump straight on and say we must make reasonable adjustments. Yes, we must. But it's not every single adjustment. And we can see shortly where we're gonna get that help to make that decision with us. But if you don't make a reasonable adjustment, it may not be a straightforward clean if there's no substantial disadvantage, as rather than wouldn't be in my view, but there are two prompts to that the duty to make them in the first place. And if not, the employees places a substantial disadvantage. To more that always get brought into discrimination claims and will be I think, with neuro diversity as well, just by the way this works is harassment. So harassment, generally speaking, could be nicknames. It could be jokes, it could be pulling somebody's leg. And you'll see maybe that could arise with the autistic spectrum when someone simply isn't getting what was looking something in a very literal way. And you might even put in there like you might get managers to get frustrated and start making jokes. And that can amount to harassment and victimization is easily missed. But that can happen because somebody made a complaint, they made a claim, and you then do something to their detriment, because they've done that. And that might be a bad reference. It might be causing them detriment because they dare to make a grievance or to make a claim against you, or the company you work for. Okay. Pre employment questions is something I get a bee in my bonnet about I'm frequently given horror stories and see them from clients about some of the health questions that HR ask, and I'm sure it's none of you. I talk about HR, I include myself in that, because I should have said first actually, until fairly recently, I was obviously solely responsible for the HR within the firm in which I work. And so I have been on sort of the table with you. So so I know what it's like. And I know the pain as well. But health questions is something that it does bug me because I think there's a tendency to send out very bland and standard questions. But you do need to think about this from a GDPR perspective and employment law perspective. Why are you asking? What is it you need to know? And when I do this, I simply think about what's the role? What's the health consequences, the implications? And then I go on to ask the questions, there is a danger and a risk potentially, there could also be a benefit in asking standard questions and see what comes back. But just be careful. So we're talking about someone with a disability. And we know that the Equality Act gives us that definition. It's somebody who has a physical or and mental impairment. And the impairment has a substantial and long term effect on their ability to carry out normal day to day activities. So we are asking for questions of ourselves. And this is something I will send out to you as a little reminder and a memoir. When you're dealing with this or have a grievance or disciplinary and disability is coming up. These four questions are really gonna fine tune for you. Does the person you're dealing with has a physical or mental impairment. Remember Diem disabilities, Ms cancer, HIV, and severe disfigurements their automatic disabilities. So there's simply no need to investigate this further. Does the impairment have an adverse effect on their ability to carry out normal day to day activities? And we'll see what that might mean in a minute. And is that effect substantial, and the Equality Act tells us that is more than minor or trivial, and five years that affect long term, and we know that's going to be either more than 12 months are likely to last more than 12 months? Okay.
Unknown Speaker 13:23
Sickness absence dismissals, generally speaking, can be one of the most risky. And as an advisor, what I tend to get is the dismissal that's just about to happen, or has happened, and I get the papers shut down being said, Can you deal with that? And one of the most frustrating things, and I see it more often is out of date medical reports, even from very big employers, and big HR teams were simply no one's address their mind to thinking, what decision are we making on what evidence because your own reports and your expert reports, my view shouldn't be any more than three months old if you're making significant decisions. And we just had a fantastic case literally, wherever in our six days ago, Judge Taylor and employment Appeal Tribunal, he said this as a case to read. And that will also show you why it's very dangerous to rely on outdated medical evidence. So current evidence on condition and prognosis is really, really important. I'm gonna skip over recent adjustments, all everything to say on that, of course, it's not every single adjustment, and you've got to go through a process to engage with the individual about why they think they need this adjustment. And it is a two way street. I think. As a lawyer, I will say to claimants and employees, it's a two way thing. It's a compensation. It shouldn't be the employee keeps quiet and used to just the recent adjustments. It's a two way street and you'll see what neuro diversity and passports how that might be a good way to look at it. And there are always alternatives to look at anything I would say on this is whenever you're making significant decision, especially dismissal, just think about alternatives. What else can I do apart from dismiss this individual? Okay. Hopefully that was revision for you all, but there is a great Rounding for that. And I want you to just remember as we go through the next 40 minutes or so as to why I've talked about that, two things, wanting to think about how you deal with people in your own organization, even in your teams. And secondly, what you would do if a claim came in or someone said, I got autism, I've got dyslexia and I think I've been discriminated against or I've got a grievance to make. I just think about how you reflect on that, because you should be going back to the law, always the law is our friend and can guide us but of course, we get it wrong. And because there are many bear traps in it so hard but out of the way. So now we can relax and talk a bit more freely, in a bit more relaxed way about neurodiversity. There is no one considered accepted, accepted definition of what neuro diversity is. There are plenty out there to give you a couple of examples. So the brain charity says that neuro diversity is simply saying that each person has a brain that is unique to them. No two brains are quite alike. And for a million people in the UK, these differences mean that they are diagnosed with a condition such as autism, hgtc hdhd, dyslexia, dyspraxia, or another neurological condition, a case in a very hurtful research paper, I think it's 2015. They did this, but I will send this out for you to look at. So this neurodiversity refers to the different ways the brain can work and interpret information. It highlights that people naturally think about things differently. And we have different interests, different motivations, and are naturally better at some things, and probably the others. I think anybody who disagree with that, were fascinated on this subject, is when your diversity in the different ways people think, interpret information, and interpret other people's communication is where that fits into things like disciplinaries grievances, because I'm pretty convinced I could be wrong, but I'm pretty convinced where you have personality clashes, people just can't be managed, quote, unquote, it's possible. There's someone on there, that person might be neurodivergent. And when we talk about neurodivergent people, we're simply saying that they have or could have a diagnosis of one of the neurodivergent conditions. And he says, There we are. So there is an example that's not all of them. Maybe some of the top ones are plenty more ones that people tend to know about. I've heard of autism, people might say something's on the spectrum, ADHD is calculator, and we'll look at these in a second dyslexia. epilepsy surprised me, I must admit, I didn't realize epilepsy was considered as a neurodivergent. issue. Developmental language disorder, fetal alcohol spectrum disorder, Tourette's and tic disorders. So there are always surprises for me, which is just fascinating subject, because it deals with neurology and how people interact with each other. So as I say, these aren't all of them. But there are some great information out there. And certainly, if you get some of the autism toolbox, which I can share these with you, there's some great information education, and education is really key, as I should be saying frequently. So if we look at just gonna pick three, three, or four, for ones that I think might come up,
Unknown Speaker 18:04
autism, and this is a classic, where people talk about someone being on the spectrum. And whether they are or they not is a matter of for medical people decide really. And I've chosen a very independent if I can, symptom list, because I know there are different views on one thing I would say is I don't pretend to be an expert in any of this, I have an interest in it. And I've experienced in it from an employment law perspective. So people with autism might find it hard to communicate and interact with other people. But in our jobs, we do that, don't we, unless you have a job that's very insular. find it hard to understand what people think or feels a lack of empathy won't be an issue. might feel overwhelmed by bright lights and loud noises and find this stressful, uncomfortable, get anxious or upset about unfamiliar situations, take longer to understand information, and do the same things over and over and over. I don't know about you, but when I when I do this research, and I do these talks, I keep thinking about people I work with. And I keep thinking, Ah, that's interesting, or cases that I've dealt with where there was a conflict or a clash. And I just wonder how many undiagnosed issues there are in neurodiversity, ADHD, attention deficit hyperactivity disorder. And Gemini kids are categorized into two problems, or issues and attentiveness and hyperactivity, and impulsiveness. There's a whole list there. Look at that. That's from the NHS, and there may be many more, but from the workplace scenario, from our perspective, lack of attention to detail, you might have a manager having a problem, you know that this person just doesn't get it. They keep they keep making mistakes, poor organizational skills, and that's me, inability to focus on prioritized misplacing things, mood swings, irritability, and you can see where these clashes happen in this case law progresses and employment tribunals and neuro diversity becomes further the list. I think we're seeing more and more than your individual issues coming out and being recognized. dyslexia is fairly common, and I think we would all probably know that that means that somebody may have an issue or problem with using some words or phrases or letters and getting their own way around that. Can't be poor inconsistent spelling. And in fact, the opposite of this when I manage somebody who had dyslexia is so that they understand information when told verbally but difficulty when it's written down, she was the opposite she needed a written down because you need to stand up verbally. And that's really where this story started for me having to deal with sort of manage somebody with dyslexia, which is fascinating. And this calculator is the numbers part of that to somebody who may just have a problem with numbers. And there's there's a really key word there are two key words mathematics, anxiety. And you'll see the word anxiety when you more more you research this can come up more often than not, when we think of things like meltdowns, or breakdowns, or timeout and that sort of thing where people with these neurodivergent issues can lead that because of anxiety. And I'm going to show you a video, it's done with the BBC hoping this is gonna work. So the BBC have a fantastic department and a resource, you can Google it and find yourself play will In the meantime, send it out to you soon as I can. And they did a video as a gaming video and I want to share something with you. I'm going to break it at some point. But what I suggest you do is put your earphones on or turn the volume up. It's done as a game like an old sort of Pac Man style guy, but it gives you an idea of what someone with a neurodivergent diagnosis might feel about just coming into a normal office that many of us might be coming back to fairly shortly so bear with me one second. Let's hope it's gonna work. I mean, I did test this and all as well.
Unknown Speaker 23:01
Right Bye bye. Now we're trying to reinforce by the end of this really good Hey, I just wanted to catch up with you about the paper we were discussing the other day. And it was all sent through, I think this draft is really, really coming up. There's quite a few things in here that we need to double check. There's some stuff in the scope, that I think needs fleshing out a bit, maybe make it a little bit smarter stuff that we've discussed. And there's some other stuff around cost benefit, I think it's double check here as well. If there's something in the back, I can't member exactly where there's somewhere in here. And if we can bring them up to this point. It's not super strong proposition.
Unknown Speaker 25:39
Sources sort of jumping, catch up.
Unknown Speaker 25:45
Okay, I'm going to pause it and stop there purely because it's such a good place to stop for me, because I know I've been that man who was just doing that to that person. I literally vomit everything over them that I want to try and take on board and expect them to understand and are supposed to go away and do it without actually explaining what it is.
Unknown Speaker 26:02
without actually explaining to realize how many mistakes I was making an English.
Unknown Speaker 26:07
Like having a proofreader and an English teacher right there speaking English is way easier to me, the writing exam really gives me confidence in Spanish, the way you say the words is the way you write it. But in English, that's not necessarily the case.
Unknown Speaker 26:18
So by selling specific colons or something like that, okay,
Unknown Speaker 26:21
so that gives you an idea of somebody with, we don't know what conditions they've got, or what doughnuts they've got, it gives you an idea of what they might be experiencing. Even simply walking into the office can be anxious enough, but you've got beeps, you've got noises, loud bangs, and this person might be looking at the floor and want to be engaging with anyone. And so this person comes across as rude or not engaging, and or, again, difficult to manage and won't take instructions. So I think the things he's done a great job, I'll send the link out of the work they've done. And that's on YouTube free to share. And I think now and again, I look at that, just to remind myself as to what some of the issues can be. It's fantastic. And they've done brilliant work on that. So is there a problem in the workplace that problem in terms? Was this term negative? Isn't it what I mean? Is there an issue you want me to think about? For me when I first started this, this research I looked at I thought, well, what happens in the workplace? What conditions? And what a better expression do we have in the workplace mental health has had a big platform, quite rightly. So for a while now. And the statistic that is often said, and it's one in four will have at least one diagnosable mental health problem in any given year. So that's a big problem, isn't it? chronic migraine, I think we will have people with chronic migraines, we have muscles, perhaps people we love that we care for, we have some one of the 1000s that's actually compared to mental health, it's quite big, but yet we'd be comfortable probably talking to someone about migraine. And being able to relate to that because we have bad headaches. Asthma is another one. You know, someone's saying up and ask me what I think like I get that because might use an inhaler, we might have a problem going from cold to hot, hot to cold hay fever, maybe analogy, I get that dusty environments, but one in seven. So more than 15% of the UK are neurodivergent. So going back to our, our graphic, one in seven could have one or more of those diagnoses. And that's only the ones that are actually diagnosed because we go into diagnosis and seconds. So it's pretty, very conservative efforts. So that says at the moment, there's a few people on this on this very cool now who have a diagnosed diagnosis on that, on that graphic we saw or who haven't had a diagnosis yet or may never have. That's why I'm so passionate about because it really is neurological conditions that really no pun intended opens your mind to who you're actually talking to dealing with on a day to day basis, especially when dealing with those behavioral problems. And there's issues where people say that and get on with him. He's hard to manage it just all I'm really saying is broaden your mind and think not the or not, but maybe think about your diversity neurodivergent issues as well. There are co morbidities which can arise with these conditions. anxiety, depression, I had a colleague who is in their 40s and they were recently diagnosed with autism. But they had the whole life they said experienced clashes with people, personality, clashes, breakdowns and family they couldn't get on with anybody. And we found that at work, this problem was this person was having problems at work. We were having, you know, informal grievances and people saying I just can't manage this individual that person say I don't like that person. They're very blunt, and they wanted the rules followed is very black and white. They're on the highest medication for anxiety, the highest medication for depression. And then, through the school their son attended, there was concerns about autism. And it highlighted this person, I wonder, and they got a diagnosis and they got a private diagnosis and it really opened their mind and one of the things with adults who are diagnosed I think often they will say now things make sense. The past makes sense. Some of the clashes I've had some of the problems that I've had now make sense. Okay. But capabilities can also be different than might be social isolation, people might not want to go out, they might not want to engage. And that's fine. But it may be because they're scared of upsetting people, if they're having a life or a work life, where they're constantly upsetting people or being upset, then they might want to go out and attend to things. And that can lead to socially exclusion, and isolation. And just think about lockdown and transition for a second, think about lockdown. I mean, all of us, I'm sure I've had some anxiety about lockdown, you know, back in March last year, it was get your box and go home. And now Boris tells us that in two weeks, time, coronas gone. And we can all rush back to the office, which is wonderful news. However, for someone who may well be dealing with some of those issues that we saw on the graphic, this can be really, really frightening. And as HR, it's our job, isn't it, to look out for those people to try and include everyone as much as we can do. And so the thing I flag is, yes, we have this disc about mental health, we have mental health, First Aiders and all the provision. But neurodiversity is something to be really alive to, and encouraging people to come forward as a problem, as we shall see. But it's something to be alive to, especially dealing with these changes, because changes and clashes tend to be one or two of the top triggers, that can bring these issues to the fore. Okay.
Unknown Speaker 31:21
diagnosis can be an issue. And for anyone who's experienced this in the virtual room, I'm sure they say the same. But you know, some of the stories I hear even from the from the child perspective, diagnosis, getting a diagnosis can be an issue. And for adults, that tends to mean they may go privately. And who that diagnosis comes from is also potentially contentious, because some of these conditions can be broad, and unspecified. So it's not always quite as simple as saying, Have you got a diagnosis? What are you diagnosed with? Because there could be various disorders, probably expression on the on the spectrum, for example, even experts might disagree with. So we need to be careful about how we phrase that have you the diagnosis or a better phrase might be Have you ever did you ever have any help with schoolwork? So you're looking for a door to go in, as opposed to begging and saying what's your diagnosis? disclosure is also not as prevalent as it should be. Because coming forward to your boss, HR, or your employer, especially a small employer saying, hey, I've got autism, I've just been diagnosed with autism or something can be very scary, especially when dealing with his co morbidities as well. So, disclosure does not necessarily get you off knowledge, though, and we will look at disability we'll come back to our claims. There is defense because employers simply no employers simply have no idea that the individual who's claiming was disabled or had any symptoms that can amount to defense in a fairly safe defense. Because it's only if the employer has knowledge of disability, can they then discriminate or fail to make reasonable adjustments? Beginning Be careful here because knowledge can be imputed. So we have imputed or constructed knowledge red tribunal can look at it and say, but you must have been obvious to there was a problem, it must have been obvious that there was an issue, what do you do that. And the classic tends to be, you've probably been individually been with you for many, many years. And they start having time off. We all know the story don't mean that the warnings we gave in the training we give to our colleagues about depression, for example. And something changes, the individual might start breaking down there might be tearful, they can't cope with things. And so we'd be thinking about mental health. But what about somebody who is clashing all the time with somebody? And we're not talking about people who are quite frankly, just a pain, because we know they do exist? Don't we, we can be open about that. Some people just don't like rules. And quite frankly, people who will be there to be a thorn in your side, because that's what they just like doing. We're not talking about those people took out people who can't help it because of the way they view the world. And the way they interpret information, and even interpret faces, and vocal expressions and instructions to them. So it's about broaden your mind and thinking, what should I know? Or what can I investigate and find out where this individual is problem. And the response is vital. Because we'll see in a minute, the case of M power, the response is not I've got a policy for that, I'm going to follow that policy. And I'm going to fit, I'm going to fit the policy around you. Simple as that we're going to follow the policy word for word, because that is a very blunt instrument, and tribunals don't like it. So the response is about being empathetic and supportive, but really comes down to education and evidence as well, if we've got education in this, and if we're alive to neurodiversity, and those who are new at urgent, then we're going to have a better way of looking at this and we have a broader interpretation of what else might be going on. I'm going to go through all of these but essentially, the anticipate is the most important one. These are the best practice generally, as I said at start to avoid claims. We can all do those things on paper. But of course in reality, we know in HR things are very, very different as a fast moving environment. Everyone's different. You might have someone who's off sick, you're getting those repeated footnotes. And you don't really know what that means and you're trying to investigate but it all looks easy on paper when we say anticipate the cases that I've looked at and seen and dealt with neurodivergent people tend to come forward or tend to present with issues when change happens or is about to happen, like redundancies. Or where there is a clash was a failure to follow instruction where they don't understand instruction, or they're just becoming unmanageable, according to the manager, because then you will find that unions in particular and finding what my suspicion is that being quite well trained in this because there's been two cases I've seen recently where there's a union rep, who has said to the individual they're accompanying to the meeting. Have you ever thought about a diagnosis of X y&z because you seem to fit one or two of the, to the symptoms, and this might be someone in their 40s or 50s, we're seeing the case of Elliot and second, this is something in the 50s, I think. And so your unions may be more into this than you are alive to it. I know managers might not be. And of course, HR, we're here just to try and guide and advise our managers. But one of the things you might be thinking about is, again, that phrase, what else is going on? What do I know about individual? What don't I know about the individual, when you're dealing with change redundancies, like returning to the office, for example, having neurodivergent people on your radar, and adjusting the way we do things is only going to help and be aware of even if you're not aware of these issues, and union reps, may well be depending on the train labor's trading, they proceed.
Unknown Speaker 36:21
So we've covered a lot and we're blasting through a lot. Apologies if it's quick, but I'm flagging these up. I think it's being recorded, you can always go over and look at it. And I will send out a summary afterwards. But occupational health, I don't know about you, I tend to have a mixed view on occupational health depending on who I've got. And it's a bit of a gamble. Sadly, in my experience, occupational health can be very bland. We've all had we've all had those offshore, where there simply is no commitment either way, is this this person disabled, but there might be retribution or not for me? Well, we realize that we need to give us a steer. I don't know, simply cuz I've had not enough experience of it. How edgy how's the word? How experienced, shall we say occupational health doctors or advisors are going to be on neurodiversity? I'm sure it's on their radar, and they're trained in it. But maybe as employers and HR, we need to be thinking about asking more clear questions, and perhaps more directed Questions Only after I suggest you have discussed that and raised that with employee potentially as you should be with occupational health reports anyway. You will also find that it may not be a doctor of a specific, especially ality who gets involved in diagnosis might be psychologists or psychiatrists. It might be different speciality doctors, you have to get involved to deal with different diagnosis because some of them can be extremely complicated, and multifaceted. And you may need expert help in terms of a claim, you will find a tribunal migrate likely but tribals might be willing to order. Maybe your expert to comment on this, it's not clear what's going on, or is not clear when the employer had knowledge due to the way that neurodivergent individuals present with a diagnosis that may not be abundantly clear. So be aware and be prepared for GPS in particular to say, I don't know, is the answer to that. Or they might be being referred to an expert for diagnosis, and you need to be alive to that and watch that red flag. And the final thing to say on occupational health reports generally is you don't always have to agree. The leading cases are quite clear. Gallup is one you may be aware of where the tribunal is very clear. Don't just rubber stamp occupational people just because the doctor says someone's disabled or not disabled doesn't mean the employer says great, I'll follow that blindly. You have to give some thought and think yourself objectively, what do I say on the evidence before me. And that's our role. We talked about what place toolkits are going to go. And it's something I'm really keen on, I think they're great. And mind the mental health charity does a great one for mental health. I've done one for a colleague has now left you had a severe nut allergy and anaphylaxis, and we had a treatment that we call it a treatment emergency plan, where is all his file. And the first date is a brief with this document about what to do because it really was really quite extreme nut allergy and how to work. And I think what's developed on from that in the neurodiversity scheme of things, is passports. So this works, and it did with me and I earlier to keep your fingers crossed. So this is one designed and created by the North East autistic society. And it's as it says, on the tin, it's a passport about me. So this might be an individual who is neurodivergent, who has a diagnosis and might not want to keep talking about it. But once HR to know what's their manager to know. All the first stages to know the Mental Health First Aid has to know and it is quite simply it doesn't does what it says on the tin talks about the condition and communication especially with autism. Autism is really important because interesting person might not want face to face contact, they might get very nervous or anxious about that, but actually they find on email or vice versa. We all will interpret information in different ways. I'm very visual. If you give me a black and white document, I tend fall asleep. For lawyers quite worrying that you give me visual and colors, I tend to absorb it more information to be given it says there, how do you want to be informed about things, it gives them an option. And things that increase my anxiety. This is really important. And this might explain why. Without having to ask the person why they might not be coming to things. While not while they might feel nervous and training doesn't mean they want to sit in a certain space during training or a meeting, or do they want more time to do things. So you can see that this is a great way to document everything. And then also tell you about situations they find difficult because every neurodivergent person will have different triggers and different anxious moments. And they will try and avoid or manage as best they can. And as a result adjustment. So this is a great way the union unite. Although the GMB Forgive me, I was also done well, that's very complicated. I don't mind it. This one is really simple. So if you've got someone with a new diagnosis, and we're dealing with adults, of course, not children, a new diagnosis, maybe this is something to mention. And, you know, conform pass apart, perhaps part of your neurodiversity policy, or your procedure, or maybe your neurodiversity champion, if you have one, that they could be aware of these because it's a great way of documenting how people want to be dealt with. Okay. I just want to cover two cases. And I really want to cover two of them is because
Unknown Speaker 41:21
and this is really awkward. For people who are in HR, I didn't know who's here, there's a number of people here and there may be people involved. In this case, we're in this, or here with me now I'm sure they're not. This isn't a criticism because one of the things about being the other side of the desk with you, I'm not a lawyer who sits there saying just do this is what the law says I'm aware that things happen and mistakes happen. And the case of n power is quite clear the way the tribunal viewed this. This Mr. Sherbourne had autism. And he struggled, as autistic people can do with noisy environments. He was made to sit at an open plan office in a very busy walkway behind him, which is distracting for a lot of people. But for someone with autism, they will be incredibly distracting and causing anxiety. It was a flexible work environment, which meant you never knew what desk you're turning up to, again, that transition back to work from lockdown. You'll be thinking about that, and how this might affect somebody like Mr. sherborn. Needless to say the response was caring to an extent. But unfortunately, managers just literally hits Mr. showed one round, they'll have faced with the policy. This is the policy, this is what we follow. This is what we do. So the policy was being used in a very blunt instrument way. And there wasn't really much of an effort, sadly, to go to the raw bones of what the disability was, What are the symptoms? How can we manage this? How can we deal with the disability and make the reasonable adjustments, the policy was just literally thrown unfollowed. And I think the tribunal sums it up here when it says the detrimental action was a continuous management failure. And that failure was to take reasonable steps to understand the claim is disability. I think pausing there and digesting again, for me as a manager, and someone in charge of HR that really hits home. Because as lawyers, as we all are deep down as HR people, we look at the law, and we have our policies and we draft them. But the end of the day, we're dealing with human beings with very different neurological takes on things and interpretations. So reasonable steps to understand the claimants disability, and mixing up welfare and capability which you can read about in the Elliott is the most recent case. And actually, I should point out that the den power case was an employment tribunal case. And as I'm sure you're aware, be careful. And if you do search employment tribunal cases Be aware that tribunals do not bind other tribunals. Judge Fred doesn't have to follow judge Smith. Okay. We have an employment Appeal Tribunal case it's binding. So early, it was a very recent case back in February. I know the barrister who didn't say which side it was, but I know the barrister, this is a very difficult case. And so Mr. Elliott was autistic. We didn't know he had a diagnosis until very late on in the process. Funny enough, but you'll see my what should be red flags, but they're actually yellow arrows look, change and communication issues. Okay, so what happened here? Very long story short, and please do read the case. And I'll tell you why you should for two reasons. The minute Mr. Elliott was a long standing employee of Dorset county council. from memory, I think he had an unblemished record. He hadn't manager, probably quite old school, who simply said to him, if you don't work during the day, or I agree, if you don't work during the day, you can work in the night. Mr. Elliot was a very hard working or is a very hard working individual. And he says in his statement, he used to work till midnight, one in the morning and his wife would tell him frequently to stop working and to stop. But then if he didn't work during the day, his view would be well, I've made up my hours. So it sounds to me as if there wasn't really a flex work policy in place or an agreement, but it was generally agreed through the manager face to face. And Mr. Elliott, due to his diagnosis, literally took the view. You can do X, Y and Zed as I can do X, Y and Zed. And that's it. is black and white incomes the new manager and at the same time incomes redundancy. So we have that change anxiety levels go up. Mr. Elliott's worried he has a new manager comes in and says, Oh, hang on a minute, what are you doing? We get to the point where there's disciplinary action for failing to be at work and not doing the hours and university where this is going. Mr. Elliot says, Oh, hang on a minute. No, I agreed before that. I didn't have to do that. During the disciplinary process, because he was disciplined for this. It was the union rep. Who said to Mr. Elliot, I wonder if Have you ever thought about you seem to match some of the descriptions of someone with an either getting a diagnosis. Now, this has been remitted back to refresh employment tribunals judge Taylor, an employment Appeal Tribunal, I'm sure was just Taylor was unfortunately quite open about his views. And on the way the judge dealt with it in the employment tribunal also, the way that to the barristers dealt with as well. But that's another thing
Unknown Speaker 46:04
that we guess we want. So the launch tribunal decided because this obviously, the level of detail that went in the tribunal was about is Mr. Eliot, disabled or not, the employment tribunal judge said no. Part of the problem, according to the employment Appeal Tribunal, Judge Taylor was that the judge was focusing on the wrong part. Because when we go back a few slides, and I won't, but back in earlier slides, we talked about the substantial impairment and daily living, we have to get our definition. If you don't meet the definition, there is simply no claim. The issue of Mr. Elliott and with a lot of people who are neurodivergent is masking or when they have coping strategies, and they are ways that people will mask or they will hide their condition and their symptoms to go along with what with what looks normal. And by normal, what we say is neurotypical someone who's neurotypical doesn't have any of those conditions or diagnosis. So what was happening Mr. Elliott was avoiding things that caused him stress or was having coping strategies. And I would probably say this is a bit like antidepressants. So someone with depression, if it's serious enough, it can have up to the disability under the Equality Act for employment or purposes. If they take medication, antidepressants, if they make the full very well, and they very rarely have any exacerbations of the depression, we can't say, because we know that where you'll find you're not disabled, because you'll find because the antidepressants are helping the person to feel better be taking antidepressants away, they will be exhibiting some of the symptoms with someone in depression, and the argument whether whether they have disability or not prevent the rise. Now, the thing with your diversity is that it's generally invisible for most people, because it's invisible, they might know that they're exhibiting exhibiting the symptoms, but also they may have developed coping strategies to deal with them in the workplace, especially in public life, because they're anxious and worried. Now, what George Taylor certainly at this is really critical, is that a coping strategy chemicals break down when under stress, like change, but a coping strategy should be taken into account, when you're thinking about the impact of the impairment. Going back to that legislative language, okay. And the key point, if a claimant significantly altered his day to day activities, or avoid some of those activities, that doesn't mean he's not disabled, because he's adapting his life. Read Elliot. And it's a really interesting case on a case study of autism and where it can go wrong, understandably, but also, it's a very good case, to refresh your mind to remind you how to deal with the section six definition has just turned is quite clear. I'm sure it wasn't just Taylor's. But it was, but he he is telling us as HR advisors, if you have a substance, if you have an impairment that has a substantial impact on daily living stop, because what we lawyers do, and it's us, we've got it wrong, we go further, we look at the code. And then we look at other things in case law to question that. He is saying but you don't need to the session six languages enough, you can stop there. So please read. Elliot is a great case for CPD. So we've noted disclosure, it's not always expressed, someone's not always gonna come to you like I did with me and said, hey, look, I've got a diagnosis of autism, can I talk to you about it, it may be multifaceted is likely to be so mental health DMH and make up mental health. Somebody might be suffering, anxiety, they might have depression, they might have other things going on. It could be a dodgy elbow. But think ethically it goes on, more more investigation comes out. And you're uncovering more more and more discipline using grievances or classics or disciplinaries, depending on the reason of course, personality clashes, management problems, the unmanageable as a term sometimes just think, take a step back. I wonder if I've ever thought about how you address that that individual is difficult. And I grant you that you can't go home and say hey, do you think you're autistic? We couldn't do that. And you've got to be careful not to undermine trust and confidence and have a constructive dismissal if you go down like that, but maybe finding words or phrases to go open that door once the doors open to ask more. And remember, you might be told in a tribunal we You should have known Where were the symptoms, where were the signs and what do you do about it? I'm going to get too much into the response but but essentially an audition to suck eggs I'm sure consultation is key with individual and advice, consultation advice. So the two most important things when you have a disclosure or where you think something is going on, there should be no surprises in an occupational health report. Because my view the best practice is telling the person what you're going to ask they got a right to see anyway, to tell them raising neurodivergent issues is delicate and difficult. But there might be ways to do it delicately, there might be three Oh, h o h might be your answer all the way in to look at some of these issues with personality clashes that may well be either an underlying cause and or passively looking at depression or something or stress. But there's another way you can ask it that may uncover other issues going on.
Unknown Speaker 50:51
positive steps, this is really simple. I think from my own experience, I have to say I dealt with a client fairly recently. And I was helping with helping him with somebody who had dyslexia. And this is a chap in his 50s running up 6 million pound companies Owens has said to me, isn't dyslexia for people who are just sick? Now I went to my response I wanted to say, but it's about educating. And I think there is a difficulty here when you speak to people who are neurodivergent, or those who care for them. They just want to be heard, and they want to be they want they want people to know this is this is invisible, but it's real. So no, it's not for people in the thick. It's not just an excuse for longer exam times. This is real, there are neurological conditions. And when we think about asthma, depression, migraines, it's just as real as those, which is why I'm passionate about talking about it. One area you might want to look at, and it certainly opened my eyes. And after going a few courses and talking to people and researching this more is our traditional approach to interviews. And maybe because there's so much experience in the virtual room now I'm sure there are different approaches on this interviews, but our traditional interview, you come in, I'm not gonna tell you what it is like you wear your suit, or you come in suited and booted. I'm gonna have five questions at you and you will answer them. Now the BBC did a presentation on this. And one of our fantastic media people said I would never have got my job. If I did a traditional interview. And it made me wonder who we recruiting? Who do I want to recruit? If I'm just firing questions at someone? I sometimes wonder, am I just do I just wanted other me. But with neurodiversity, and we'll see what the wonderful video in a minute it brings so much freshness and so much talent to your workplace. But maybe, how about disclosing the interviews first? How about telling them getting a chance to give written responses. I'm just going to mention one thing, which I really wanted to have a look at which I haven't got time to show you but I want you to be aware of is it's similar to the past sporting where there is a plan for someone who is coming in for an interview. It looks similar to this, but you'll see there's a plan about who you're going to meet maybe the photos of them. And I'll send that out to you but really to look at that it's called a workplace plan or an interview plan. And it's really, really great. Okay. Educate is important because I need to educate myself. And I thought I pretty much knew all things employment law, and I didn't review recruitment as a starter. Encourage disclosure. How are you going to deal with disclosure, what policy you've got in place? education, I think is really important. I'm going to stop next I want to show you a video but don't get your order. Because I really mean is a couple of minutes just to go over things with something given by HSBC. It's on YouTube. It's fantastic. I love this video. And it really shows the talent diversity that can be bought. And then I'm going to stop and play all of it. I'll show you a couple of bits of that's okay. And only doesn't shout at me for going over. So so please bear with me. It's a great video. And I promise you actually all of it, it's only four minutes long. We will cut that out from ups and questions to do with.
Unknown Speaker 53:57
If a person were to say to me, wow, you're really good at thinking about concepts. For example, the equivalent of that, for me, would be to say to a person, wow, you're really good at breathing. People think that you're thick. They think that I can't read
Unknown Speaker 54:13
that we're dumb that we're slow. We're unethical. Actually, it's quite the opposite. I'm new. I diverse because I am autistic. I have something that's called Asperger's syndrome, which is an autistic spectrum disorder. I'm dyslexic. I have Asperger's syndrome. On dyslexic. I'm I also have dysgraphia.
Unknown Speaker 54:33
I have dyslexia and dyscalculia. I got an ADHD diagnosis a few years ago. And it was actually the first time in my life that I made sense to myself. I just think it's the way my brain is wired up, just wired differently. I am not seeing what everyone else is seeing. There's obviously a huge advantage to that. But we've only learned to appreciate this potential over the last few years.
Unknown Speaker 54:59
One of understanding neurodiversity is if we've got people who we call normal, we call them neurotypical, they can see the visual spectrum of colors from red to Indigo neurodiverse people, they might not be able to see blue, but they can see an infrared. Now you've got somebody in your team who can see the doc, do you want to have that person in your team? Of course you do. Many of my strengths, I believe come from my autism.
Unknown Speaker 55:25
I'm good at retaining knowledge, I know where to find the knowledge, my brain is incredibly logical. One of the my main traits is I can take lots of different sort of level 2d drawings, and then make them into a 3d model in my head and be able to spin them around.
Unknown Speaker 55:40
I'm very good at spatial things. I built a kitchen in our house 12 years ago, bought all the bits from IKEA, and fitted the whole thing. And somebody said to me, said, Well, what do you make plan that I didn't put it all in my head.
Unknown Speaker 55:52
So ADHD is basically like watching 30 different channels.
Unknown Speaker 55:57
I can stop there. Because that always annoys me how he built the kitchen with no plan is amazing, because I can't even build a drawer. So and hopefully, that's a nice positive to end on. I can't see faces, but I hope some of the line has been some smiles and baby some minds open a bit. And I hope with me that you also step out today just thinking a bit more for a better expression. This is a great subject is fascinating. But thank you for listening. And I think angels are saying there might be some questions if I can, if I can't, I promise I spoke for too long. I'll try and answer them afterwards. I'll stop sharing any
Unknown Speaker 56:29
Okay, well with through some of the questions, but thanks for that. Robin. I'm in absolute awe of your passion and knowledge about this subject. It's amazing. So thank you. And so let's have a look, have a quick look through the questions and see what we can get through and somebody has asked what was the judge Taylor case reference? And I'll send you that story. Yeah. I, I will walk and tell you now if you like it's it's Elliott. Well, which one we've got the x n pack. So it's gonna give me sherborn sH er, B, oh, you RNA. And then V or and n power limited. And if you just Google as a 2018 case, it should be there on the internet, but I will send these out with links as soon as I can. I'm Michaela, I'm sorry. I speak too fast. So what I'm going to do is actually screenshot these questions and comments. And as Robin said, He will do a follow up note responding to those questions. Because we are running out of time, I'm just conscious of time. So just to close the call, just want to say we'll send out some correspondence to people that have signed up for the event. And I'll put a post on LinkedIn over the next few days. If you could comment, and share the post. That'd be great if you do have LinkedIn as we don't charge for these events, and it just always raises our brand awareness. We also have a guild networking group HR professionals, I think a lot of you are probably signed up to it now. But for those of you that have that aren't, I'll also include that link onto the email because it's it's really picking up momentum. So And finally, if anyone is recruiting, obviously we have accountants in crude and fd recruit under the group as well as HR create. So feel free to contact me and I can put you in contact with both and consultants. And finally, just a massive, massive thank you, Robin. It's been brilliant. I've really enjoyed today's session. And thank you so much for tuning in. Thank you very much.
Transcribed by https://otter.ai