What recent case law means for employers
When an employee discloses that they have ADHD or autism, many employers may ask the question: Does this amount to a disability under the Equality Act 2010? It’s a crucial consideration – not just ethically, but legally too.
Under the Equality Act 2010, employees are protected from discrimination, harassment and victimisation if they meet the legal definition of being disabled. This also places a duty on employers to make reasonable adjustments – such as modifying working patterns, reducing sensory triggers, or adjusting performance expecations – to help remove barriers at work.
However, not every health condition automatically qualifies. While some conditions – like cancer, HIV and multiple sclerosis – are explicitly recognised as disabilities under the Act from the moment of diagnosis, others, including ADHD and autism, aren’t explicitly listed in the legislation. That can create uncertainty around how to respond and, in some cases, has led to legal disputes.
A recent Employment Appeal Tribunal (EAT) decision has provided further clarity, with practical implications for HR teams supporting neurodivergent colleagues.
The legal test: What counts as a disability under the Equality Act 2010?
Under Section 6 of the Equality Act 2010, a person is considered disabled if they have:
“a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”
Let’s break that down:
- A physical or mental impairment can include conditions like autism, ADHD, anxiety and depression.
- Substantial means more than minor or trivial – i.e. it has a real impact.
- Long-term means it has lasted or is likely to last 12 months or more.
- Day-to-day activities include things like communicating, concentrating, coping with change, travelling and following instructions.
Crucially, it’s not the label or diagnosis that determines whether someone is protected under the Act – it’s how their condition affects their ability to function in everyday life. For example, two people might both be diagnosed with arthritis, but while one experiences mild, manageable symptoms, the other may have severe pain and limited mobility that affects their ability to carry out everyday tasks. Only the latter may meet the legal definition of disability.
ADHD and autism: Are they considered disabilities?
Although not listed conditions, both ADHD and autism can amount to a disability under the Equality Act.
For HR professionals, this means that protection doesn’t hinge solely on whether someone has a diagnosis, but on the practical effects of the condition on the individual. That said, a formal diagnosis can provide useful context and evidence.
It’s worth noting that accessing a diagnosis is not always straightforward. Many adults wait over a year for an ADHD assessment and considerably longer for autism. So, while a diagnosis can help inform understanding, it shouldn’t be treated as the only route to recognising an employee’s needs or legal status. Recent legal commentary is moving towards a broader recognition that neurodevelopmental conditions like ADHD and autism can, and often do, meet the legal definition of disability – diagnosed or not.
Case law update: Stedman v Haven Leisure Ltd
This case could shape how future claims involving these conditions are assessed.
Mr Stedman applied for a seasonal role with Haven Leisure and disclosed that he had ADHD and autism. His application was unsuccessful, and he brought a claim for disability discrimination.
Before assessing whether Mr Stedman had been subjected to disability discrimination, the Tribunal had to decide whether Mr Stedman was legally classed as disabled at the time of the alleged discrimination. Although it accepted that he had a mental impairment, it found that it didn’t have a “substantial adverse effect” on his ability to carry out normal day-to-day activities. The Tribunal pointed to the fact that Mr Stedman had completed a degree, performed in public, and managed various aspects of daily life.
However, on appeal, the EAT disagreed and found that the Tribunal had misapplied the legal test. Key points from the judgment included:
- Only one substantial adverse effect is needed. The law doesn’t require the person to be affected in all areas of life.
- Strengths in some areas don’t cancel out difficulties in others. There’s no balancing act.
- The correct comparator is the person without the impairment. The focus should be on how the individual would function without their condition, not how they compare to others.
- A clinical diagnosis supports the case. The EAT noted that a diagnosis of autism or ADHD typically means a clinician has identified significant challenges – so it can be strong evidence of both impairment and impact.
The case was sent back to a new Tribunal to reconsider the facts in light of this legal approach.
5 practical takeaways for HR
- Neurodivergence can qualify as a disability
ADHD and autism are not automatically classed as disabilities under the Equality Act, but the associated challenges – for example, with concentration, flexibility, sensory processing or emotional regulation – can have a substantial effect on day-to-day functioning and therefore meet the legal definition of disability under the Equality Act.
- A diagnosis can support – but is not essential
Formal diagnoses can be useful in evidencing impact, but they can be difficult to obtain. HR teams should also be guided by what the employee is telling them about how their condition affects them. Don’t wait for a diagnosis before taking supportive steps.
- The duty to make adjustments starts early
Employers are expected to consider reasonable adjustments from the moment an individual applies for a role – not just after they start employment. This includes adapting recruitment processes where needed.
- Focus on the individual’s experience, not assumptions
Tribunals and employers must look at how the condition affects the person’s day-to-day functioning, rather than judging based on outward appearance or perceived success.
- Take proactive steps to support inclusion
Rather than focusing on whether someone is ‘disabled enough’, concentrate on what support can be offered to help them succeed. A culture of understanding and inclusive practice is key to building an inclusive culture that enables everyone to perform at their best.
