A recent case considered by the Employment Appeal Tribunal (EAT) has highlighted the need for employers to be flexible when it comes to recruitment practice, emphasising that one size should definitely not be made to fit all.
Asperger’s Syndrome is a lifelong development disorder which falls within the autism spectrum. Individuals with Asperger’s can often have difficulty in understanding and interpreting other people’s non-verbal behaviour, motivations and expectations and can find social interaction confusing.
The effect of this is that some employers unfamiliar with the condition may be cautious about recruiting someone with Asperger’s. But the reality is while some personal qualities and characteristics may come across differently in the case of those affected, they are often very high functioning, extremely intelligent and capable candidates who can offer valuable skills and attributes to your workforce. So what would you need to consider when employing someone with Asperger’s?
From a simple risk management perspective, employers need to be aware that an individual with Asperger’s would very likely be protected by the Equality Act 2010. That legislation creates an obligation on an employer, service provider or educational establishment to consider what reasonable adjustments may be necessary to the way in which they operate so as to ensure that a disabled person is not placed at a disadvantage.
This issue of adjustments was brought into sharp focus in Government Legal Service v Brookes which considered whether a job applicant with Asperger’s Syndrome was discriminated against by being required to sit a psychometric test. The short answer was yes, but the case raised some interesting points about what adjustments need to be considered to accommodate disabled job applicants. In this case, the candidate contacted the employer asking that adjustments were made to the test. She was told an alternative assessment was not available but went ahead anyway, only to fail.
The EAT considered that the ‘provision, criterion or practice’ (PCP) of requiring all applicants take and pass the test placed the applicant at a particular disadvantage compared to other candidates. Her claim of unlawful discrimination and failure to make reasonable adjustments succeeded. The EAT acknowledged that whilst the GLS needed to test the core competency of candidates to make effective decisions; a psychometric test was not the only way to achieve this.
What adjustments could have been made to the recruitment process?
Like any other candidate, individuals with Asperger’s Syndrome have a variety of useful skills that can be utilised in the workplace. But they are often disadvantaged when it comes to securing and keeping a job because of difficulties with social communication and interaction especially when faced with a lack of understanding by peers or customers.
So as not to deter individuals with Asperger’s, employers should ensure job adverts and job descriptions are written in plain English and specify only what is actually required in the role. At interview stage, it is essential to ask closed questions about an individual’s specific experiences and skills, rather than open ended questions asking them to tell you something about themselves. It may even be that an interview in the traditional sense is not going to get the best from an individual and an adjustment to the recruitment process may include allowing a companion to attend the interview or even arranging a short workplace trial. This would then allow the individual to perform the role and allow a business to assess suitability in a more practical way.
What adjustments could be made to the role and the workplace?
During the course of employment, it is important to consider what adjustments may be needed to a role so that an employee with a particular disability is supported, given equal access to opportunities and is assessed in the most appropriate way for them. Adjustments will need to be reasonable and this will depend on the work involved and the resources available to the business but in the case of Asperger’s may include:
- Ensuring appropriate structure and support is given to help employees prioritise activities like organising tasks into a timetable for the working day.
- Providing training and monitoring which may include informal mentoring by a manager. Depending on the employee, they may also need reassurance in stressful situations which could be provided by colleagues who can help alleviate any stress that the employee may feel.
- Clarifying the expectations of the job and the duties they are required to undertake but also the unwritten rules of the workplace that may be more difficult for someone with Asperger Syndrome to pick up.
- Making sure that instructions are concise and specific. For example, it may be necessary to change the way an instruction is communicated from ‘Please give everybody a copy of this’, to ‘Please make three photocopies of this, and give one each to Dave, John and Mark’.
- Regularly reviewing performance and providing specific and sensitive feedback in meetings. This may need to be more frequent than for other employees.
- Adapting the physical workplace such as screens around a desk, noise cancelling headphones or simply the position of their desk in the office.
An employer should however always be guided by the individual employee in relation to any adjustments to the role or to the physical workplace as not all employees with Asperger’s require the same level or type of support. In making your workforce more aware of the condition, either through training or the employee volunteering details of their condition and how it affects them at work and discussing this openly with their colleagues, this will ensure better understanding amongst staff resulting in a diverse, multi-skilled and successful team that is tailored perfectly for your business.
Chris Phillips is a Partner of niche employment law practice, Loch Employment Law.
For more information or advice please contact Chris at firstname.lastname@example.org or call us on 01892 773970