Now more than ever, the modern law firm needs lawyers who are problem solvers, lateral and innovative thinkers, strategy creators and trouble shooters to be able to maintain a sustainable business model in our ultra-competitive global market. These skills are often highly prevalent in individuals who may be described as “neurodivergent”. This is an umbrella term coined to embrace the natural range of variation in human brain function and processing, which differs from the so called “neurotypical” person who processes information in a way normalised by society. Examples of some of the most well-known neurodiverse conditions include dyslexia, autism, ADHD and dyspraxia.
However, neurodiversity is much more nuanced than the stereotypical “autistic savant” cemented in pop culture by films like the Oscar winning “Rain Man”. In this article, Partner Emma Bartlett and Associate Wonu Sanda consider, the benefits to the legal sector of harnessing neurodiverse individuals, why it is vital that law firms promote awareness and discourse around the issues, understand their legal obligations and the practical steps they can take to recruit and support a more neurodiverse workforce.
The benefits of neurodiversity – why should law firms care about promoting it in their businesses?
There is a strong business case for including and supporting neurodivergent individuals within the legal sector. They can bring unique positive qualities and strengths to a law firm, including challenging stale or inefficient systems, practices, processes and ‘cultural comatose’. It was, in fact, acknowledged by the Law Society of England and Wales in June 2018 that, “recognising and supporting this diversity is important to the legal sector” and ignoring it means potentially losing out on a valuable source of highly skilled talent. Additionally, the chances are that many law firms are already home to a hidden cohort of neurodiverse lawyers and staff, with experts estimating that 10-15% of the UK workforce is neurodivergent, some of whom may not yet have been diagnosed or have not disclosed.
A striking example of the benefits can be drawn from the experience of Hewlett Packard Enterprise (HPE) in the technology industry, who discovered that the neurodiverse software teams within their Australian Department of Human Services were 30% more productive than the others. Whilst in the US, Florida’s first openly autistic lawyer, Haley Moss, credited her autism for her laser like focus during document reviews and her ability to catch the anomaly and details in the data that others missed.
Such benefits cannot be ignored. However, within the legal industry, and with the high profile exception of Linklaters who have partnered with Auticon (a not-for profit organisation who place highly skilled but underemployed individuals with autism in the workplace) to hire neurodiverse workers in their technology team, there are not currently many firms known to have initiatives aimed at increasing and harnessing the benefits of neurodiversity. It is therefore an area ripe for attention to boost neurodiversity amongst lawyers, support staff and law firm leaders themselves.
Understanding neurodiversity
An important initial step for the legal industry is understanding and raising awareness about neurodiversity and how it may present in their workforce or recruitment talent pool. Generally, a neurodiverse worker profile will have distinct peaks (or spikes) in their skillset and distinct dips compared to a neurotypical worker profile, which will be less varied. The peaks however are what set neurodiverse talent apart.
Dyslexic profiles, for example, often spike with regards to ability to link ideas, see in 3D and flourish as entrepreneurs. The dips may impact one of reading, writing or short-term memory to some extent, but the ‘dips’ are something employers will need to look at making reasonable adjustments in order to ameliorate their impact and reap the benefit of the peaks in their employees’ skills profile.
Autism on the other hand is a spectrum disorder, including Aspergers. Such neurodiverse individuals typically demonstrate loyalty, exceptionally low absence rates, high levels of dedication and an eye for detail. If not understood correctly however, difficulties can arise. For example, autistic individuals may struggle with a lack of structure or clear communication; they may not pick up on non-verbal communication or unwritten rules; their behaviour can be misconstrued as rude, insensitive or unfriendly; worst of all, if not properly considered, can result in them being isolated and ostracised.
Dyspraxic individuals may have exceptional verbal skills, but they may have difficulty in processing information quickly. They can be excellent speakers, trainers, highly creative and different thinkers. Physical co-ordination, judging distances or space, managing social sequences, or not dressing smartly enough can be the “dips”.
However, whilst certain forms of neurodivergence may typically display a range of associated characteristics, it is important for firms to be aware that many neurodivergent people will be on a spectrum and behaviour and thinking patterns will vary between individuals. Law firms should accordingly be careful not to make assumptions about a person’s abilities or skills based on a specific neurodivergent condition.
Legal issues and challenges
Alongside embracing the benefits of neurodiversity, firms crucially need to consider their legal obligations in this area too as certain types of neurodiversity can be disabilities under the Equality Act 2010. Identification of a neurodivergent disability would fix firms with obligations to make reasonable adjustments, not to treat the individual less favourably because of their disability or unfavourably for something arising in consequence of the disability. It is also worth noting that these disability discrimination obligations will extend to senior employees and managers, as well as partners and LLP members, and firms will have to consider how to manage their obligations to all staff.
Disability discrimination protection starts from recruitment through to the terms and conditions on which firm’s contract with neurodivergent individuals (whether that is a contract of employment or terms of a partnership deed or members’ agreement).
For neurodivergent individuals traditional hiring practices like standardised application forms, aptitude or personality tests and face to face interviews, may pose a barrier to progression through the recruitment process, due to possible associated characteristics. For example, some individuals with autism may struggle with eye contact or social awkwardness, which may contrast with conventional notions of what makes a good lawyer or worker. This could prevent the neurodivergent applicant ever even getting past the interview stage. They may also be screened out by tests designed to evaluate the processing styles of neurotypicals, but which inadvertently discriminate against neurodiverse people.
Firms should be aware that a failure to make reasonable adjustments to standard recruitment processes for neurodivergent individuals was found to constitute disability discrimination, as illustrated in the case of Government Legal Services v Brookes. In that case, part of the GLS recruitment process required candidates to answer a multiple-choice questionnaire. The ‘absolute’ nature of this type of questioning was a barrier to Ms Brookes as an autistic trainee solicitor, so she requested that as an alternative she be allowed to provide short narrative answers. The GLS rejected the request on the basis that there was no alternative format for the test, but offered her additional time instead. GLS was found to have indirectly discriminated against Ms Brookes and failed to have made a reasonable adjustment, as having disclosed her disability she was put at a disadvantage compared to candidates without autism. While GLS was prepared to make an adjustment, it was not a reasonable adjustment as it did not alleviate the impact of Ms Brooke’s condition. GLS did not properly consider her request for a less discriminatory way of meeting the GLS’s objective of testing the candidates.
A further challenge may be posed by a firm being unaware of an individual’s disability, because they have not disclosed it or may not themselves realise that they are neurodivergent. Notwithstanding, legal obligations will apply should a firm be deemed to have constructive knowledge of an individual’s disability from other information available to it. Workers may also get a diagnosis during their employment, which can create obligations for the employer they might not previously have considered. Either way, firms should not ignore either notification of a diagnosis or advice put before them, as this could potentially lead to unlawful disability discrimination.
Additionally, where non-conforming ‘dips’ in a neurodivergent worker affects their working habits, work output or conduct with colleagues, a firm may be tempted to attribute that to underperformance or misconduct at first blush, when it may in fact be linked to a neurodivergent disability. In such circumstances, there is a risk of a potential claim for discrimination arising from disability. Such was the case in City of York Council v Grosset [2018] where Mr Grosset, a teacher, was dismissed for showing an 18-rated film to a class of 15 year olds. Mr Grosset attributed this incident to an error of judgment precipitated by stress which arose from his disability (cystic fibrosis) and an increased workload. The Court of Appeal held that the School did not need to know that Mr Grosset’s actions arose in consequence of his disability to be liable for discrimination arising from disability. It was enough that the causal link existed and that he was treated unfavourably because of it.
It is worth remembering that firms can justify unfavourable treatment, but they may struggle to do so if they have failed to make reasonable adjustments. Firms will no doubt find these obligations difficult to balance, particularly if the neurodivergent individual is in a position of management or leadership, as certain characteristics (for example, communicating in a direct way that may be perceived as blunt or even as amounting to bullying by subordinates) may be due to a neurodivergent trait. Accordingly, it is key that the message of neurodiversity inclusion is championed so lawyers and staff at all levels feel psychologically safe to discuss their needs and adjustments can be explored, with the benefit of expert medical and occupational health advice where relevant, before detrimental action is taken.
Practical steps for law firms to create a more neurodiverse and inclusive work environment
In order to get the best out of anyone, understanding them is the first step. Understanding what a neurodivergent employee finds difficult in the workplace through open discussion with them, and perhaps anyone advising them on navigating their condition will allow firms to put in place appropriate support mechanisms. For example, a person with autism or ADHD may find an environment with busy corridors and noise too distracting. It might be an easy one to fix where that distraction is removed. Or perhaps they find unwritten social queues difficult to pick up on; management need to know to express communications clearly. Firms can take advice from occupational health practitioners and external experts such as Daniel Aherne at Adjust, to navigate these discussions and find easy resolutions, potentially through a workplace assessment. Very often the “dips” are easy to resolve. Firms might also consider providing team members with information about neurodivergence through activities, awareness campaigns, training and workshops.
Often firms are modelled operationally and physically around the neurotypical worker. But there are wider practical steps which can be taken to make firms more inclusive for neurodiverse individuals. For example, in relation to recruitment and workplace processes, firms should consider evaluating their recruitment processes and providing adjustments to assessment tests or interview formats in specific cases, as well as training interviewers in unconscious bias and how to avoid making assumptions based upon an applicant’s body language or social competence; updating policies on disability to refer to neurodivergence and providing examples of reasonable adjustments that are used by the organisation to reassure candidates and current staff that it is safe to disclose and they will be supported. ACAS guidance on neurodiversity published in March 2019 also sets out helpful recommendations to improve neurodiversity and inclusivity, that firms may wish to consider.
Conclusion
Raising an understanding and awareness of neurodiversity is important. In the same way that employers acknowledge the importance of discussing good mental health and how to improve it has allowed colleagues to talk more openly about it and feel supported, a similar strategy with regards to neurodiversity should have a positive impact.
At present firms may have little idea of what percentage of their workforce might be neurodivergent and until they feel confident that their condition will be supported rather than used against them, they may choose to keep it hidden. Raising awareness of neurodiversity internally is a great first step. Many may also be undiagnosed, but if a firm which starts to take neurodiversity into account in its processes, may unintentionally assist those of who are unaware of any specific needs they may have. Finally, having shown internal support, it would be something to shout about externally in order to ensure neurodivergent candidates will feel they can be themselves if they joined that firm. Being able to bring their whole selves to work should mean they are free to focus on the day job!
If you are a law firm, a professional practice partnership or LLP, or other multinational employer and would like to discuss any issues relating to improving neurodiversity and your obligations to neurodivergent individuals, or for specific legal advice on particular circumstances or if you have any other questions arising from this alert, please contact Partner, Emma Bartlett or Associate, Wonu Sanda, both of whom specialise in partnership and employment issues for partnerships, LLPs, partners, members, multinational employers and senior executives.
