By Sophie Whitbread, Managing Associate, Employment, Penningtons Manches Cooper LLP
A BBC News article caught my attention recently. It highlights the difficulties faced by an autistic man who is trying to return to the workplace but struggling to do so. He has encountered stumbling blocks when seeking changes to arrangements for making applications for jobs to accommodate his autism. For him, some simple changes to the application process, including having tick-box options on application forms instead of free-form text boxes, and the ability to see interview questions in advance, are adjustments that would help him to succeed when applying for roles. His story shows that many employers are unwilling to make adjustments to application and interview arrangements, which is holding back potential candidates from work.
This is backed up by the findings of the Buckland Review of Autism Employment, published in February 2024. This review found that around one third of autistic employees felt unable to discuss their adjustment needs at all. Of those who did request adjustments, over a quarter were refused.
Whilst the BBC article and the Buckland Review relate to those with autism, these difficulties are faced by neurodivergent applicants across the board.
The law
Disabled applicants are protected by the Equality Act 2010, which requires employers to make reasonable adjustments for them where an aspect of the application process puts them at a substantial disadvantage. However, it is clear that this is far from what happens in practice in every case.
Getting the adjustments you need
As highlighted by the Buckland Review, many disabled people will not mention their need for adjustments. This may be because they feel they can – or ought to be able to – manage without. Sadly, it may also be because they fear, rightly or wrongly, that the employer will react negatively if asked to make adjustments.
Here are some tips on how to put yourself in the best position when making job applications:
1. Be really clear about your disability and your need for adjustments
The duty to make reasonable adjustments only kicks in when the employer knows or ought to have known about an applicant’s disability. It is therefore vital that applicants are upfront about the fact that they are disabled. This is particularly important with neurodivergent conditions where the impact of the disability may not be immediately obvious.
2. Be clear and specific about the impact of your disability and the adjustments that would help you
If an employer is to make a meaningful adjustment, they need to understand what the impact of your disability is, what the proposed adjustment is and how it will alleviate that impact. Again, if they do not know this, and they ought not reasonably to have worked it out for themselves, there is no obligation to make an adjustment.
Compare two unsuccessful disabled applicants whose cases recently went to the employment tribunal. Mr Mallon was required to complete a short online application form to apply for a role. He asked instead that, because of his dyspraxia, he be allowed to make an oral application and provided some information to the employer about how dyspraxia affects people generally. The employer refused to do this and Mr Mallon brought a claim in the employment tribunal. The tribunal found that it would have been reasonable for the employer to pick up the phone to try to help Mr Mallon in progressing his application. What Mr Mallon particularly struggled with was being able to set up a username and password to access the form. The tribunal found that the employer could have talked this through with him if they had agreed to speak to him by phone.
Mr Glasson, on the other hand, did not go far enough in explaining to a potential employer what the impact of his disability was. Mr Glasson has a stammer and, prior to an oral interview for a job, he told the employer that he needed more time to complete his answers. However, what he did not tell them was that, in addition to this, his stammer meant that he would go into what he described as ‘restrictive mode’ when answering questions, giving shorter answers to some questions than he otherwise might, as a way of avoiding stammering. Although Mr Glasson performed well at his interview, he scored one point behind the second most successful candidate. He brought a disability discrimination claim in the tribunal but was unsuccessful. This was because he could not show that the employer knew of the impact of his stammer on the length of his answers, only that he might need more time to complete them. We do not know what would have happened if the employer had been aware of this. It may have made no difference at all, but Mr Glasson did not put himself in the best position he could have done in advance of that interview.
3. Plan ahead
We can all find it hard to think on our feet, and those with neurodivergent conditions may find it more difficult to respond in the moment to a question about the need for reasonable adjustments. Do therefore spend time thinking about what it is that you find difficult and what helps to alleviate that. Look carefully at application interview information and ask questions about the format so that you know what to expect. Before you even apply for jobs, sit down and – ask for help if you need it – try to think of the different scenarios you might find yourself in and the effect they may have on you.
Whilst employers may be expected to have some general knowledge about a particular condition, disabilities affect everyone differently. For example, the autistic applicant highlighted in the BBC News report above says that he finds tick boxes easier to complete rather than free-form questions on an application form. By contrast, another autistic job applicant succeeded in an employment tribunal case because they had not been allowed to provide short written answers as an alternative to a multiple choice question. Everyone’s disability and the impact it has on them is therefore different and it is really important that you spend time thinking about your own personal situation.
Some people find the Health Adjustment Passport (HAP) helpful as a way of thinking about their disability and how it affects them, both at the application stage and more generally in the workplace.
If you have not had an Access to Work assessment, you could apply for one to see what support you could get in applying for jobs.
4. Set out your needs in writing
Try to draw up a clear written record (using a HAP or not, to suit you) of the adjustments you need and why you need them. Get some help putting this together if you need to. It will act as a useful reminder for you of what you need as well as being something you could send to a potential employer. If all goes wrong and you find yourself in an employment tribunal, it is something you can rely on as evidence that you have communicated clearly about your disability to the prospective employer.
Note to employers
It can be daunting as an employer faced with prospective employees with a whole range of different disabilities, including neurodivergent conditions. The easiest approach can be simply to apply your normal procedures and hope everyone can get on with them. By doing this, you put yourself at risk of employment tribunal claims from disabled employees where you have failed to make reasonable adjustments. Arguably more importantly, however, you not only deprive those individuals of the possibility of working for you, but you deprive your business of the potential that they may bring to it.
There is no substitute for open and honest communication when it comes to talking about reasonable adjustments. You do not have to be an expert on every disability. The most important thing you can do is to listen and take seriously the concerns of disabled applicants. Keep an open mind as to the changes you can make to your application process to facilitate a wider pool of applicants. You then may be surprised by the positive impact this has on your business going forward.
