Autism is a neurodiverse condition, meaning that the brain works and interprets information in a different way from how society expects. In this briefing, rradar solicitor Laura Moore investigates how this may manifest itself in the workplace and the employer’s duty to support.

Most people are what is known as neurotypical. This means they think, perceive and act in ways that are thought of as the norm by the general population. Most forms of neurodivergence are experienced on a ‘spectrum’ and have a range of related characteristics which can vary from person to person. For example, one person might experience strong symptoms of autism, but another person might not be as affected.

Characteristics of autism
Although every autistic person is different, people with autism may experience issues with:

• Social interaction, including interpreting social cues;
• Empathy;
• Communication;
• Flexible behaviour.

Other characteristics associated with autism, including:

• Anxiety in social situations;
• Difficulty expressing feelings;
• Finding comfort in having a routine;
• Noticing small details others don’t.

However, autism manifests positive attributes as well, including:

• Thoroughness.
• Accuracy.
• Concentration.
• Freedom from distraction.
• ‘Listen, look, learn’ approach.
• Fact finding.
• Excellent long-term memory.
• Superior recall.
• Visual learning and recall.
• Detail-focused.
• In-depth knowledge.
• High level of skills.
• Analytical.
• Spotting patterns, repetition.
• Unique thought processes.
• Innovative solutions.
• Distinctive imagination.
• Expression of ideas.
• Determination.
• Challenge opinions.
• Honesty, loyalty.
• Commitment.
• Accepting of difference.
  • Less likely to judge others.
  • May question norms.

Does an employee have to tell you they are autistic?
An employee may tell you if they are autistic - but they might not, for a variety of reasons, and there is no obligation for them to do so. Autism is automatically classed as a disability under the Equality Act 2010, which means you are under a legal duty to make sure they are not subject to discrimination, and must make reasonable adjustments.

What is reasonable for one employee or workplace may not be the same as another. It will depend on the individual circumstances.

Factors that need to be considered include:

• The size of the employer – a large organisation may have greater means.
• Whether the adjustment is practical to make.
• Whether the disadvantage noted in the workplace would be successfully overcome by the adjustment.
• How the adjustment could affect other workers, for example their health and safety.

The employer is responsible for paying the cost of adjustments, but may have access to funding such as the government’s Access to Work scheme. On occasion, adjustments may be considered unreasonable and an employer could lawfully refuse to make them.

You should therefore make sure you create an open and safe environment so those with disabilities feel comfortable telling you about their condition.

Performance and productivity issues relating to autism
Symptoms of autism may cause issues with an employee’s performance and productivity.

If you suspect an employee's medical condition, such as autism, is affecting their performance, you must factor that into any performance management process. In addition, you would also need to consider seeking advice from a medical professional in the form of a medical report.

Managing an employee's performance when you know, or ought to know, that the medical issue is linked can be difficult, and we would recommend that you seek legal advice throughout that process.

As part of the performance management process, you may identify reasonable adjustments that can be made to support the employee in the workplace. If the employee suggests adjustments, you have a legal duty to consider these and there are limited circumstances in which they can be refused.

Examples of reasonable adjustments

• Create an atmosphere where they feel comfortable discussing their needs with you.
• Explore changing the employee’s working pattern if it will help them. Bear in mind that this might amount to changing their terms and conditions. For example, you could:
  • • make sure their shift pattern is the same each day
  • • allow the employee to work from home more
  • • change or reduce some of their duties
• Accept the employee might need time off for medical appointments.
• Relax rules on sickness absence triggers, if appropriate.
• Make sure their role and environment are well structured.
• Ensure instructions are concise and specific.
• Adapt their job role or tasks to fit with their way of thinking.
• Provide a calm, safe place for the employee to go to if they feel overwhelmed.
• Make sure they are happy and comfortable with their workstation.
• Provide sensory distractions if they find it helpful.
• Allow extra time for breaks.
• Have regular welfare meetings with the employee to make sure they are comfortable and happy at work.

Telling colleagues
You must always respect the privacy of an employee with autism. You must not discuss their diagnosis with anyone else without their consent. However, you may need to discuss with the employee if colleagues should be informed of their condition because:

• Other employees have noticed a change in behaviour;
• You do not want to give the impression the employee is receiving favourable treatment; and/or
• Colleagues can help support the employee.

You should have a meeting with the employee and discuss how the information will be shared. Your options could be:

• You or the employee send an email explaining their diagnosis;
• You or the employee hold a general meeting to explain their diagnosis; and/or
• You hold a general meeting without the employee present to explain their diagnosis.

This could help the employee as it can answer initial and awkward questions colleagues may have, get the information out in the open and all at once, and prevent speculation. It will also help colleagues as it will give them the information they need to know and shut down unwanted comments and questions.

As a general rule, and not just relating to autism, implementing disability awareness and training can help to make the workplace disability-friendly and improve working relationships.

Avoiding discrimination
If someone is treated negatively because of their disability, this is classed as discrimination under the Equality Act 2010.

To prevent this happening, you should:

• Think about the reasonable adjustments that can be made (see above);
• Consider whether any performance issues are due to autism; and/or
• Make sure employees are not subjected to comments or jokes.

Failing to consider these points could lead to Employment Tribunal claims of disability discrimination.