The Hidden Dangers for SME Employers who Ignore Neurodiversity

It is now estimated that 1 in 7 people within the UK population are probably neurodiverse. Consequently, it is perhaps no surprise that Employment Tribunals are seeing a sharp rise in claims linked to neurodiversity. ADHD-related cases alone have increased by 750% since 2020, with autism and dyslexia cases also on the up. These are not isolated disputes in big corporations, smaller employers are just as exposed, and often more vulnerable, because they lack the buffer of in-house HR or access to legal teams.

The risks are not abstract. Employers have lost a couple of recent Court decisions. Though we do not yet know the value of the awards against them, the individuals concerned were high earners and the pay-out could be considerable.

In one recent case, a senior executive (earning £220,000 a year) was dismissed after sleeping in a sauna following a work event. Her employer argued her behaviour undermined her professional standing; she argued that her ADHD had contributed to the incident through forgetfulness. The Tribunal agreed with her ruling that her condition had been a factor and that she was discriminated against.

In another case, a Tribunal found that a multinational (Capgemini) had breached the law by failing to provide ADHD awareness training recommended by occupational health. The case was brought by a tech specialist earning £120,000, training would have cost little, yet its absence weighed heavily against the employer in Court.

These cases underline the point: ignoring neurodiversity is not only a legal risk, it is a commercial one. For smaller employers, one claim could mean reputational harm, lost management time, and financial strain.

So, what should SME employers do to protect themselves, and their people?

Six Steps to Adopt

1. Recognise that neurodiversity is real and rising

Greater awareness and diagnosis mean more employees are disclosing conditions like ADHD and autism. Employers cannot afford to dismiss these as “buzzwords” or fads. Under the Equality Act 2010, many forms of neurodivergence qualify as disabilities, entitling employees to legal protections and reasonable adjustments.

2. Put your commitment in writing

Make sure that within your policies and procedures, Managers recognise neurodiversity as a possible form of disability, meaning that staff can request support.  This sends a signal of seriousness. If disputes arise, it also shows you have considered the issues proactively.

3. Don’t wait for a crisis — make adjustments early

Too often, disputes escalate because an employer waits until misconduct or poor performance occurs. Adjustments do not have to be expensive: clearer instructions, mentoring, or small working environments tweaks may suffice. But failing to act can quickly tip you into unlawful territory.

4. Seek expert input

When concerns arise, do not try to guess whether behaviour is linked to neurodivergence. An occupational health assessment or HR advice can clarify what is going on, and what adjustments might help. Importantly, it shows you have taken reasonable steps, something tribunals look for.

5. Tread carefully with conduct issues

High profile cases like TV Master Chef Presenter Gregg Wallace, or case law such as Duncan v Fujitsu show that misconduct linked to ADHD or autism do not give people a “free pass” to unacceptable conduct. In this legal case, the Claimant failed to demonstrate that his offensive messaging was directly linked with his ADHD, which he also failed to support with suitable medical evidence. 

Even where there is no obvious direct link between an employee’s behaviour and their disability, there may, however, still be an indirect discrimination link that proves problematic.  Examples of indirect discrimination against neurodiverse people in the UK include applying a universal policy, like a strict "no headphones" rule, that disadvantages those with sensory sensitivities, or a time-pressured, multiple-choice recruitment test that disadvantages candidates with conditions like Asperger's or ADHD. Other examples are inflexible working patterns that do not accommodate neurodivergent needs, or performance management systems that misinterpret neurodivergent communication styles as poor performance.

Dismissals can still be fair, but only if they are proportionate, justified, and alternatives have been considered. Tribunals expect employers to balance protecting the workplace with supporting the individual. Documentation of your reasoning is essential.

Employers should always consider the justification defence and, in particular, whether a lesser sanction than dismissal is appropriate in the circumstances with respect to achieving a particular legitimate aim. In the Duncan v Fujitsu case, the Courts accepted their objective justifications. Preventing the use of threatening language, or preventing harassment and other behaviour that leads to a hostile working environment or preventing threats of violence against colleagues (expressed to other colleagues, but directed repeatedly and forcefully at colleagues and Managers) can be objectively justified in most work-related contexts.

6. Foster an inclusive culture

One of the most effective safeguards is to develop a culture where employees feel safe to disclose neurodiverse conditions, and Managers respond with understanding rather than scepticism, meaning that problems are less likely to escalate. Inclusion is not just about avoiding claims, it’s about unlocking the potential of neurodiverse talent.

Conclusion

For SME employers, the dangers of ignoring neurodiversity are clear. Tribunal claims are rising, case law is evolving, and judges are prepared to scrutinise whether an employer has done enough.

The lesson is simple: do not bury your head in the sand. With awareness, small adjustments, and a willingness to engage openly, employers can not only stay out of Court, but also benefit from the creativity and skills neurodiverse staff bring.

The guidance provided in this article is just that - guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice