ADHD and employment law: a guide for the workplace

With more people being diagnosed with neurological conditions, neurodiversity is being recognised and discussed in the workplace more than ever before. But what does this mean in an employment law context?

Neurodivergence includes a range of conditions such as Autism, Dyspraxia and Attention Deficit Disorders. In this blog we focus on Attention Deficit Hyperactivity Disorder (ADHD) and how employers can support employees with ADHD whilst ensuring they do not fall foul of any legal obligation (though the suggestions in this blog are equally applicable for supporting other neurodiverse employees).

ADHD is a neurodevelopmental disorder, with exhibited symptoms of inattentiveness, hyperactivity, and an impulsive nature (or a combination of these). Though symptoms can vary, individuals with ADHD often face challenges with attention-to-detail, interpersonal skills and communication.

Depending on individual circumstances, ADHD could meet the legal definition of disability under the Equality Act 2010, meaning such individuals would be protected from discrimination in the workplace as a result of their disability. In addition, employers have a duty to make reasonable adjustments to ensure employees with a disability are not substantially disadvantaged in their role. It is worth noting that not all individuals with ADHD will consider themselves to have a disability so employers should keep that in mind when entering into discussions on this topic with employees.

Recruitment

Employers should be mindful of neurodiverse candidates when recruiting for positions. In the same way you would accommodate another type of disability, you should consider whether any adjustments are required to the interview/selection process to ensure the candidate can engage with the recruitment process effectively. Some examples of adjustments might include:

• Providing interview questions in advance: neurodivergent candidates may struggle to think on their feet so it can be helpful to provide the questions in advance, so the candidate has time to consider their responses.
• Consider allowing the candidate to be accompanied: a neurodivergent candidate may find it helpful to have a support worker with them during the interview to provide support and assist with any potential miscommunications.
• Ensuring a comfortable interview environment: it is important for neurodivergent individuals to have a calm environment free of distractions when they are in a pressurised situation such as an interview. Because individuals with ADHD can have heightened sensory sensitivities, it can be helpful to check the candidate is comfortable with the interview room before beginning (eg lighting, ticking clocks, temperature etc).
• Providing comfort breaks: neurodivergent individuals can feel overwhelmed during long meetings so interviewers should allow candidates to take a break if needed.
• Consider additional time for written assessments: if part of the interview process requires the candidate to complete a written assessment, consider allowing additional time for a neurodivergent candidate as it can take them longer to process.
  
  

These are just a few examples. For a discussion of further points for employers to consider, please see our blog Important considerations when interviewing neurodivergent employees. Although the focus of this blog is on interviewing employees during workplace investigations, many of the points are equally applicable to a recruitment process.

Being open at the start of a recruitment process and when advertising the role by asking whether there are any adjustments the candidate requires for neurodiversity will help to give neurodivergent candidates the confidence to apply.

During Employment

What treatment might employees be undergoing?

Employers should be aware that neurodivergent employees may be undergoing treatment and may therefore require some adjustments to support this. Treatment for ADHD can take several forms, including medication and/or alternative therapies.

For employees who are on medication, they may find the first stages to be more difficult. Individuals may need to engage in trial-and-error methods to find the best dose and type of medication for them. Even if a successful dose is found, individuals may experience side effects and some medications take one to two hours to be absorbed by the body. For employees who have severe symptoms it may help to permit them to start their day earlier/later to work around their medication.

An increase in those being diagnosed with ADHD has recently resulted in medical shortages. Employers should be aware that if an employee is unable to obtain their usual medication, their symptoms may be exacerbated, and an employee may require additional support.

As well as taking medicine, different therapies can also be useful in treating ADHD, such as cognitive behavioural therapy. Employers should ensure an open dialogue with employees to understand if additional support is needed in respect of these.

Whatever treatment an employee may be receiving, there is no cure for ADHD and an employee’s symptoms can change over time. It is also common for individuals with ADHD to suffer with other mental health disorders such as anxiety, depression, or a learning difference. Communication, a willingness to learn and engage with your employee’s disorder(s) and being flexible to their needs can help employers and employees navigate towards a positive outcome for both parties.

What adjustments might someone with ADHD find helpful?

It is always a good idea to seek medical advice if you are unsure what reasonable adjustments an employee may require. Some general adjustments that may be helpful for an employee with ADHD are:

• Flexible working: working from home, quiet rooms, or flexible hours can assist ADHD affected individuals with time management, helping to mitigate distractions and being able to work during their more productive hours.
• Structured instructions in written form: providing clear and concise written instructions can help an individual with ADHD to effectively prioritise tasks. Breaking tasks down into smaller, manageable steps is also helpful.
• Workplace support and training: consider training for managers/employees on recognising neurodiversity and its impact on individuals to encourage a culture of understanding and awareness. Support networks and mentors for neurodiverse employees can also assist to facilitate personal and professional development.
• Breaks: allow employees with ADHD to take regular breaks to refresh and refocus.
• Regular check-ins: as well as helping the employee to feel supported, checking in regularly with employees with ADHD allows them the opportunity to provide feedback/suggestions on adjustments or raise any issues they may have.
  
  

Performance management and disciplinary processes

If an employer commences performance management or disciplinary proceedings with an employee who has ADHD, it will need to ensure that the process is adjusted accordingly to take account of the employee’s disorder.

Performance plans should be tailored with the employee’s ADHD in mind and the employer will need to set realistic and achievable goals, taking the disorder into account. Checking in regularly to ensure targets are appropriate and to see whether any further adjustments are needed will be key.

Disciplinary processes are a stressful time for any employee and individuals with ADHD may find them particularly difficult. Employers should ensure appropriate support is offered, such as a pastoral point of contact, so the employee has someone to speak to confidentially.

For both performance and disciplinary processes, you will need to consider whether the employee’s ADHD is the cause of the underperformance or the misconduct. If it is, you will need to tread carefully when it comes to imposing any sanction to avoid potential allegations of disability discrimination and to ensure appropriate reasonable adjustments have been put in place.

Individuals with ADHD and other neurodiverse conditions are often reluctant to disclose their condition to their employer. Demonstrating that you are a neurodiverse-supportive workplace may encourage employees to come forward, which in turn allows you as an employer to ensure the appropriate support is in place to get the best out of your neurodivergent employees.

Many thanks to current trainee Stephanie Keen for their help in preparing this blog.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2024