Much work is still to be done in the pharmacy sector when it comes to disabilities and neurodiversity, as Richard Hough and Thorrun Govind explain…

Neurodiversity describes the infinite variety of ways in which the human brain can operate. It leads to diverse ways of thinking, retaining memories and paying attention. Forms of neurodivergence that you might be aware of include attention deficit hyperactivity disorder (ADHD), autism, dyslexia and dyspraxia. However, there are many others too.

Neurodiversity embraces the concept that there is no “correct” way for the brain to work. Instead, there is a wide range of ways in which people perceive and respond to the world, and such differences are to be encouraged. Evidence suggests that there is overprescribing of medication, particularly psychotropics, in children and young adults with neurodivergent conditions.

Recently, we attended The Petty Pool Neurodiversity at Work conference. Petty Pool Vocational College is a specialist education provider which supports young adults with learning disabilities and difficulties from across Cheshire, Halton and Warrington. At the conference, we heard about how organisations can benefit by embracing neurodiversity. A broad range of topics was discussed at the conference, such as improving diversity and inclusion, hearing varying perspectives, improving employee loyalty and customer relations and the development of skills.

The Equality Act 2010

However, the point of those discussions was not just a case of embracing neurodiversity purely to benefit organisations. As Brabners colleagues discussed as part of a panel discussion, the Equality Act 2010 broadly protects people against discrimination at work. Discrimination amounts to treating someone 'less favourably' than another because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation, all of which are known as protected characteristics.

Disability is defined by the Equality Act 2010 as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ effect on your ability to do normal daily activities. ‘Substantial’ is considered more than minor or trivial, for example, if it takes much longer than it usually would to complete a daily task like getting dressed. ‘Long-term’ amounts to 12 months or more or an impairment whose effect is likely to last 12 months or more.

Given the definition of disability, being neurodivergent may amount to a disability under the Equality Act 2010, even if the person does not consider themselves to be disabled. In the Pharmacy Defence Association’s (PDA) Ability Networks’ recent disability discrimination survey, 52 per cent of respondents stated that they had experienced disability discrimination at work. In addition, 40 per cent of respondents stated that they felt that they had been excluded from the workforce, under-employed or unemployed due to their disability.

Reasonable adjustments

Not only are such findings concerning, and particularly so when the sector faces such immense workforce challenges, this is also potentially legally actionable. The Equality Act 2010 requires employers and service providers to make 'reasonable adjustments' to remove any disadvantages that are suffered by disabled people. Such adjustments may be required to help neurodivergent workers perform best and may include actions related to focus, attentiveness and distraction.

Support for neurodivergent workers should be assessed on a case-by-case basis and employers must make reasonable adjustments to make sure workers with disabilities, or physical or mental health conditions, are not substantially disadvantaged when doing their jobs. These adjustments should also be regularly reviewed. Some reasonable adjustments may also have the added benefit of assisting neurotypical workers.

An example of a reasonable adjustment is that the worker would be allowed to take shorter breaks throughout the day or that they are provided with a space which is free from distraction. It should be noted that what is reasonable for one organisation may be impossible for another. For example, it would be impossible for a community pharmacist to work from home and also be the responsible pharmacist. This is because a number of pharmacy duties cannot legally be carried out in the absence of a responsible pharmacist.

A failure to make reasonable adjustments could amount to discrimination. If a formal complaint does not resolve the problem, an employee may consider making a claim to an employment tribunal. However, there are strict time limits for making a claim. In most cases, a claimant has three months minus one day from the date on which the episode of discrimination happened.

If the time limit has passed, then it is up to the tribunal judge to decide whether they will accept the claim. It is very clear that there is much work to be done in the pharmacy sector when it comes to disabilities and neurodiversity, especially given the disappointing PDA survey results.

If you are looking for a confidential chat to discuss employment law concerns or would like to know more about what your rights and obligations are under the Equality Act, then please get in touch.

Richard Hough is a partner at Brabners and a former pharmacist. His co-author Thorrun Govind is a pharmacist and solicitor at Brabners.