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In recent years, neurodiversity has gained well-deserved recognition as an important component of workplace diversity and inclusion. For employers, there are legal risks in engaging, managing, and dealing with performance and conduct issues of neurodiverse employees.
Neurodiversity broadly refers to the variation in human neurocognitive functioning, and is often considered as an ‘umbrella term’ which covers a range of conditions such as autism spectrum disorder (ASD), ADHD, dyslexia, dyspraxia, Tourette syndrome, as well as other neurological differences.
In Australia, there are various statutory laws protecting the rights and entitlements of employees in the workplace.
If employers do not build inclusive, compliant and respectful systems and processes for employees, then, they may find that they are directly (or indirectly) overlooking key protections required for employees, including those who have disclosed neurodivergent conditions.
For example, if an employee discloses their neurodivergent condition during a standard performance management process, this may require the employer to reassess its processes and accommodations available to the employee before proceeding with performance management. Importantly, it is not a one size fits all approach.
When considering neurodiversity in the workplace, employers should be proactive in creating an environment that is supportive of inclusive employment practices. Their focus should be on providing a respectful workplace and championing growth and development of all employees. Where employees disclose neurodivergent conditions, employers should feel confident in providing a respectful and appropriate response.
This should involve both the ability to celebrate the unique skill-sets and differences of their employees, and also ensure their organisational processes, systems and policies are inclusive and compliant with relevant employment and legal obligations.
The use of artificial intelligence is a new challenge in recruitment, reward and performance management systems, classifications and promotions generally, but also specifically in managing neurodiversity to ensure compliance.
Key considerations for employers
It has been estimated that 15% to 20% of people worldwide identify as neurodivergent. Importantly, understanding neurodiversity and its opportunities, could provide to an employer improved wellbeing and organisational growth.
Embracing neurodiversity is not merely a matter of legal compliance it is a strategic advantage that can drive innovation, creativity, and a deeper sense of inclusion across the organisation.
Education
Unfortunately, due to a lack of understanding on what neurodiversity is, there is often bias and stigma that can lead to adverse treatment of neurodivergent employees, resulting in unlawful treatment such as discrimination.
Employers must not unlawfully discriminate against neurodivergent employees or applicants (for example, rejecting a candidate solely because of their autism diagnosis). More subtly, indirect discrimination can arise when workplace practices, while neutral on the face of it, disproportionately disadvantage neurodivergent individuals. An example of this could include, a policy requiring all employees to participate in open-plan team meetings without accommodations that may disadvantage employees with sensory processing difficulties.
Of course, there are always nuances in what conduct is appropriate, and, legally compliant. This can be dependent on individual circumstances, and involves an assessment of what forms the inherent requirements of a role to be safely and successfully performed, and, where relevant, what reasonable adjustments may need to be introduced.
Making reasonable adjustments
Section 5 of the Disability Discrimination Act 1992 (Cth) (DDA), requires in effect employers to provide reasonable adjustments to accommodate a person’s disability. An adjustment will likely be considered reasonable unless making the adjustment would impose an unjustifiable hardship or the employee is not able to perform the inherent requirements of the work even if reasonable adjustments are made.
Some key questions for employers:
(a) Is it a disability? – with neurodiverse conditions, any diagnosis needs to be made a medical practitioner.
(b) What are the inherent requirements of work? – this may require a job analysis.
(c) What are reasonable adjustments?
Some examples of what reasonable adjustments may include, are:
• Modifying recruitment processes (for example, allowing written interview questions or alternate communication formats).
• Providing quiet workspaces or noise-cancelling headphones.
• Allowing flexible work hours.
Importantly, employers should consult with affected employees to identify suitable reasonable adjustments. It is never a ‘one size fits all’ approach. Instead, it is important to have a comprehensive understanding of what the inherent requirements of a role are, and what medical information is available to understand whether there are any impediments on an individual safely performing a role. This is not a simple question and involves careful consideration, medical information and possibly, legal advice.
Understanding neurodiversity and legislative protections
In Australia, under the DDA, individuals with neurological conditions are protected against unlawful discrimination. The definition of ‘disability’ in section 4 of the DDA is intentionally broad and includes both permanent and temporary conditions, and covers disability including a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or where a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour are affected.
If employers do not understanding how to manage neurodiverse employees in the workplace, then there is risk that their conduct could result in direct or indirect discrimination under the DDA. For example, direct discrimination would involve treating a neurodivergent employee less favourably due to their neurodiversity. Indirect discrimination could involve having workplace policies or practices that disadvantage neurodiverse employees, without reasonable justification.
Additionally, state and territory anti-discrimination laws, such as the Equal Opportunity Act 2010 (Vic) and the Anti-Discrimination Act 1977 (NSW), impose further obligations on employers to eliminate discrimination and promote equal opportunity.
Employers must ensure they are confident in managing neurodiverse employees, and are able to create a working environment that is free from unlawful discrimination.
Developing an inclusive and respectful workplace is not a new phenomenon, however, with employees feeling confident in raising their neurodivergent conditions in the workplace, employers should be able to provide support, understanding and ensure their organisation can be proactive in how it manages neurodiversity in the workplace.
Legal ramifications
There are many avenues available to employees if they feel their rights have been unlawfully impacted.
If Employers do not understand how to lawfully manage workplace policies and procedures relevant for neurodivergent employees, there is significant risk that they may breach the rights of employees under employment legislation.
For example, under the Fair Work Act 2009 (Cth) (FW Act), an employer cannot take adverse action against an employee, for a reason that is against the law (prohibited). If for example, an employer adversely treated an employee because of their disability, or for another discriminatory reason, such as having a neurodivergent condition, then an employer could be found to have breached the employee’s general protections.
While, in some circumstances, employers may simply be trying to act on instructions of management, or implement their usual practice or procedure, they may not realise that certain conduct involving neurodivergent employees could be considered unlawful.
If an employee feels that their rights or entitlements have been breached, or feels aggrieved by an employment situation, they can take legal action through the Australian Human Rights Commission, the Fair Work Commission, or the Federal Court. These processes can be of significant reputational and financial risk for an employer when required to defend employment claims.
Privacy considerations
Under the Privacy Act 1988 (Cth), ‘health information’ is considered sensitive information. It is important that Employers obtain informed consent before collecting, using, or disclosing this information, and ensure it is securely stored.
Employees are not required to disclose a diagnosis unless it directly impacts their ability to perform inherent job requirements. It is therefore important for Employers and Human Resource Managers to foster a workplace culture where disclosure is met with understanding, not stigma.
Occupational health and safety obligations
Work Health and Safety (WHS) legislation (for example, the Work Health and Safety Act 2011 (Cth) and its state equivalents) requires employers to ensure the health and safety of all employees, so far as is reasonably practicable. This includes both physical and psychological safety.
For neurodivergent staff, this means proactively identifying psychosocial risks, such as sensory overload, exclusionary communication styles, or inappropriate performance management processes, and addressing them effectively.
Key takeaways
Australian employers and human resource professionals play a critical role in fostering workplaces that are not only inclusive of neurodiversity but also legally compliant.
By understanding the intersection of neurodiversity and anti-discrimination law, proactively making reasonable adjustments, and ensuring privacy and work, health and safety obligations are met, human resource managers can lead the way in building truly equitable workplaces.
1. Review recruitment and onboarding processes
Ensure your job advertisements and interview processes are inclusive and accessible. Use clear, structured communication and record the criteria for roles clearly.
2. Train managers and staff
Provide training on neurodiversity, unconscious bias, and inclusive practices. Frontline managers should understand legal obligations and the business value of neurodiverse teams.
3. Develop inclusive policies
Integrate neurodiversity into broader diversity and inclusion policies. Include clear procedures for requesting accommodations and resolving complaints.
HR managers must assess whether existing policies may inadvertently exclude or disadvantage neurodivergent employees.
4. Establish support networks
Consider employee resource groups (ERGs) or mentorship programs for neurodivergent employees to foster belonging and visibility.
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