Neurodiversity and Reasonable Adjustments

– Is there a better way?


A conversation with a kitchen worker during a routine occupational health and safety management systems audit recently prompted me to think more deeply about disability discrimination as it applies to neurodivergent workers.

The question is whether the employer’s responsibilities under the Disability Discrimination Act 1992 (the DDA) adequately protect neurodivergent workers who think and behave differently?


The term neurodiversity was first conceived in the 1990s by Australian Sociologist, Judy Singer who is herself Autistic. She wanted to change the disabling language used to describe Autism, which comes from the Medical Model of Disability and argued that neurological differences such as Autism are neither normal nor abnormal. They are just different. This is at the heart of the Social Model of Disability, that was emerging at that time.

Quite simply, neurodiversity is the concept that there is a natural variation in the human brain that leads to differences in how all humans think and behave.

adhd in the workplace autism in the workplace centre for neurodiversity define neurodiverse managing asd in employees managing neurodiverse employees

Neurodivergent workers – those workers who’s neurological functioning diverges in different ways and to varying degrees from the typical (neurotypical) are often not aware that they are neurodivergent and if they are, they usually do not disclose it to their employer because there is stigma, a fear of discrimination and even shame.

It is estimated that 15 – 20% of the global population has one or more neurological difference (Doyle 2020) and 65% of those are of working age (15 – 65). That is one in eight people who are neurodivergent and of working age.

Annie’s story

The worker, Annie, told me that she had lost two week’s pay because she took unscheduled annual leave to attend the premature birth of her grandchild at her hometown in Central Queensland.

Annual leave had been approved for the two weeks around the baby’s anticipated due date, which was not expected for another two months, but when Annie’s daughter went into premature labour, she just left and drove out to be with her. She rang her supervisor on the way to let them know what was happening and the supervisor told her that they would sort out her leave when she got back.

Annie submitted an amended leave application form upon her return, but this was denied because she had not given adequate notice, even though her original application had been approved. As a result the leave was unpaid and Annie felt deeply resentful, anxious, financially distressed, and needed to borrow money from a relative to pay her rent.

She had not appealed the decision internally because she did not want to make trouble and did not know the process to do so. This was documented in a Complaints Policy, which Annie had never read and did not even know existed.

The employer’s Leave Policy made no provision for annual leave that had been approved but was taken earlier than requested due to emergent circumstances such as these. It provided only that applications for annual leave must be made at least one month before the intended date of leave commencement and would be approved at the discretion of management.

The employer’s practice for the communication of company policies and procedures was that new or revised documents would be placed in hardcopy in the “Policy Folder” in the lunchroom and staff were expected to read these during their breaks.

But Annie has Attention-Deficit/Hyperactivity Disorder (ADHD) and Dyslexia. She had mentioned this in passing to her supervisor but had never asked for any adjustments to her work, and none had been offered. There had never been a discussion about how her neurodivergent functioning might affect her ability to work safely.

As for reading the company’s policies and procedures, Annie said there was “no chance” she could do this, and she relies on other workers to tell her what to do. She was able to complete the Leave Application form because she took it home and had one of her children help her.

Appealing the administrative decision internally required her to write a letter setting out the circumstances and lodging this with the Human Resources Manager within a set time limit. That time limit had expired. Again, Annie said there was no way she would be able to do this and would rather just let it go.

So why is this an occupational health and safety issue that the employer should be concerned with and not just an employee relations issue?

Apart from the fact that the employer’s decision had created a psychological injury risk, their communications practices place a barrier to accessing essential safety information for this worker, given her unique neurodivergent profile.

Were Annie to sustain an injury at work, how could she navigate complex and administratively challenging incident reporting and statutory workers’ compensation processes that rely upon the written word and the worker’s reading and executive functioning skills?

Is neurodivergence a disability?

The Disability Discrimination Act 1992 (the DDA) defines disability in broad terms and includes physical, intellectual, psychiatric, sensory, neurological, and learning disabilities and so neurodivergence can fall within this definition.

It includes within its objects the elimination, as far as possible, discrimination against persons on the grounds of disability in various contexts, including employment.

The DDA makes it unlawful to discriminate against a person because of a disability and in the employment context it protects people with disabilities from discrimination at recruitment, the terms and conditions of employment, training, promotion and from being dismissed because of their disability.

Autistic people, and/or those with ADHD, Dyslexia, Dyscalculia, Dysgraphia, Dyspraxia, Tic Syndrome (including Tourette’s Syndrome) and Obsessive-Compulsive Disorder, are protected under the DDA because these neurological differences meet the broad definition of a disability.

Yet many high-profile and successful neurodivergent entrepreneurs, scientists, athletes, and artists credit their success to their neurodivergence, and even though it may present challenges in some areas of their lives, overall, they do not consider themselves to be disabled.

For others, the severity of their neurodivergence is so profound that it creates significant challenges across all areas of their lives, and they need a great deal of support.

Whilst these neurodivergences are often identified in childhood, as learning and functional differences become apparent, usually they are not. Neurodivergent adults are commonly misdiagnosed with a mental health condition such as anxiety, depression, bipolar disorder, or may also have these as comorbid conditions.

Based on a prevalence rate of ADHD of 2.3 – 5% of the global population, In Australia only one in ten people who has ADHD, has been diagnosed and is managed (Raman et al. 2018). The health and socioeconomic impacts of unmanaged ADHD are profound and present a significant public health issue.

These neurological differences are not merely childhood problems that kids grow out of. Whilst some who are diagnosed in childhood can, with the right support, adapt to the extent their difference does not significantly impact them in adulthood, this is not the case for most.

Any supports or adjustments that were available to the neurodivergent child within the education system are generally absent from most workplaces.

Neurodivergence is usually a genetic difference in the way the brain has developed and as such it is a lifelong variation from the typical. Usually, a person will have more than one overlapping neurodivergence and, as these are not static states; they can vary over time and as circumstances change.

This is relevant and significant for employers and workers’ compensation insurers because it is possible for a person’s neurodivergence to be exacerbated by their work.

Reasonable Adjustments under the DDA

The DDA requires that employers make reasonable adjustments for workers with disabilities, but in the case of neurodivergent workers this assumes that:

    • the worker considers their neurodivergence to be a disability – and they may not;
    • the worker even knows that they are neurodivergent – and they may not; and
    • the worker discloses their neurodivergence to their employer – and they usually do not.

With this being the case, how is the employer to know if the work systems, processes, and environment, which are usually designed around neurotypical functioning (i.e. to suit the majority) are creating barriers to the neurodivergent workers’ ability to work productively and safely?


The Viscious Cycle of Non-Disclosure

For an employer to reduce occupational risks to neurodivergent workers they need to understand how the workers’ ability to work safely is affected by their neurodivergence.

If the worker does not see evidence that their employer has an open and inclusive culture and employment practices with respect to neurodiversity, they usually do not disclose.

They will use all the productivity tools they know and do their best to perform within the neurotypical systems, processes, and environment. But this masking comes at a price. It is mentally, emotionally, and physically exhausting.

The incidence of mental health conditions is 50% in the neurodivergent population as opposed to 25 % in the neurotypical population.

If circumstances change, the neurodivergent worker struggles to adjust. Performance, safety and relationships can deteriorate both at home and at work. Their performance and safety behaviour appear on the supervisor’s radar, and they may enter the performance management cycle. This does not help. Now they are anxious about their employment security and the more they worry, the more their ability to think clearly, function and perform work safely decline.

Finally, something happens that needs to be addressed through a formal disciplinary process. This does nothing to improve their performance because no amount of telling the worker to try harder or being precise about how performance needs to improve is going to make their neurodivergent brain work in a neurotypical way.

Eventually, and inevitably, one way or the other the employment relationship ends. As far as the employer is concerned the problem is solved. But this vicious cycle of non-disclosure keeps turning and nothing changes, and it affects the next worker and the next and the next.

Research has shown that neurodivergent workers have higher levels of unemployment, unstable employment, and lower earning capacity than their neurotypical peers and this is one of the reasons why.

Work Health and Safety and the Employer’s Primary Duty of Care

There are many dedicated neurodiversity advocacy groups that provide resources for neurominorities and their employers. Usually these assume that the work is being carried out in a relatively low risk office environment and puts the focus on what can be done to support the worker’s productively, rather than ensure their safety.

But what if the worker is a construction worker, or a miner, or a solar panel installer, or a production worker in a chemical or pharmaceutical company? The fact is that neurodivergent workers do not just work in low-risk office environments. They can and do work across the spectrum of occupations and are exposed to all the same hazards as neurotypical workers.

But how they think, feel, learn, communicate, regulate attention and emotion, perceive, and respond to risk, and experience the physical environment, is different from neurotypical workers.

If, during the design of an organization’s health and safety management system there has been an assumption that all workers think and behave in roughly the same way, then there will be elements of that system that are not going to be effective in reducing risk and may in fact increase risk, for a substantial minority of the workforce.

Whilst there are many duty holders under the Work Health and Safety Act, including workers themselves, it is the Person Conducting the Business or Undertaking (the employer) that holds Primary Duty of Care to ensure, so far as reasonably practicable, the health and safety of workers. This duty cannot be delegated to another person.

Unlike the DDA which is designed to protect individuals with disabilities from discrimination, the WHS Act protects ALL workers, including those who think and function differently, whether they have been diagnosed or not and whether they consider themselves to be disabled or not.

Workers’ Compensation

Both statutory and common law claims are determined on a case-by-case basis depending on the facts.

In the case of Truffet v Workers’ Compensation Regulator [2019] QIRC 201 the Appellant argued that his Autism had been exacerbated by his work and that this was a personal psychological injury.

The statutory claim was denied by WorkCover Queensland, and this decision was confirmed by the Regulator and Queensland Industrial Relations Commission.

But the Commissioner accepted that the Appellant had sustained a personal psychological injury in the form of an exacerbation of his Autism, which arose out of, or in the course of employment.

The decision to deny the claim was made on the basis that work was not the major significant contributing factor and/or that the injury was excluded due to reasonable management action.

In different circumstances, it is entirely possible that a statutory claim would be accepted, and it’s likely that as awareness increases within the neurodivergent community that there will be more claims of this nature.

Anti-Discrimination Acts

There is an argument that neurodivergence requires its own classification as a discrete minority group under within the Anti-Discrimination legislation, regardless of whether the individual considers themselves to be disabled.

The Anti-Discrimination Act 1991 (Qld) (ADA) aims to protect people from unfair discrimination, sexual harassment and other objectionable conduct and provides a means to bring a complaint and have it resolved.

Under this ADA, it is illegal to discriminate against someone based on certain characteristics including sex, age, race, gender identity or sexuality, relationship status, pregnancy, breastfeeding, family responsibilities or parental status.

To illustrate the point, some – but not all – members of the LGBTQI+ community may also be disabled. They are protected from discrimination under the ADA because of their gender identity or sexuality, and under the DDA from discrimination, because of this disability.

Applying this same principle to neurodivergence; if a person identifies as neurodivergent, regardless of a medical diagnosis which may not have been accessible to them, they would be afforded protection under the ADA.  If that person is also disabled, they would be protected from discrimination because of that disability under the DDA. The disablement is different from their identity as a neurodivergent person.

From Reasonable Adjustment to Inclusion and Equity

The problem with focusing purely on reasonable adjustments to accommodate neurodivergent workers is that it keeps our thinking rooted in the Medical Model of Disability.

There will always the need for diagnosis, treatment, and medical management for some and unfortunately without this, people with ADHD cannot access medication that is effective in about 80% of those that can use it, in improving neurocognitive functioning and quality of life; and neurodivergent people generally may not be able access adjustments at work or other supports in the community that would help them.

But not everyone needs or wants a diagnosis. Adults who have functioned the way they have their whole life may see no need to have a label or use medication. They are still neurodivergent, they still have great strengths and challenges.

The absence of a formal diagnosis does not mean they are any less neurodivergent.

The system that is designed to protect people with disabilities from discrimination is inherently discriminatory to neurodivergent workers, because to access adjustments to their work environment, they must know that they are neurodivergent; consider their neurodivergence to be a disability and be willing to disclose it. For most this is unachievable.

The neurodivergent worker is in a no-win situation. If they disclose their neurodivergence to their employer, they risk discrimination and judgement. If they do not, then the occupational hazards that affect them differently cannot be identified, assessed, and controlled.

But it is the employer that owns the Primary Duty of Care to ensure so far as reasonably practicable the health and safety of all workers, including those who think and function differently.

Maybe there is another way to look at this?

What if we stop focusing on the “disclosure of a medical condition” and “provision reasonable adjustments” and start talking about creating the conditions in which neurodivergent workers can be themselves at work, without having to wear a neurotypical mask or fake normal?

Neurodiversity inclusion isn’t just about being a good corporate citizen or ticking the diversity and inclusion box for the annual report.

For employers to be able to discharge their Primary Duty of Care they must consciously and deliberately weave accessibility into the fabric of their organization because unless we consciously include, we will unconsciously exclude (Frost, 2022).

It is only in this flexible and inclusive environment that neurodivergent workers can be authentic about who they are and what they need to work safely, without the fear of judgement or discrimination; and it is only within such an environment that employers can discharge their Primary Duty of Care to ensure the health and safety of all workers.


Applying this to Annie’s case

If Annie’s employer had recognized that all workers think and learn and provided flexible and inclusive practices for the communication of critical safety and policy information, the risks of both physical and psychological harm, not only for Annie, but for every worker with different learning and literacy abilities in that workplace would be reduced, without the need for disclosure.

Rather than waiting for a worker to disclose their neurodivergence and requesting reasonable adjustments under the DDA, that are then individualized to that worker and retrofitted after the fact, a more inclusive and proactive approach is to build accessibility features into organizational systems routinely for anyone who needs them, regardless of whether they have a disability that they have disclosed.

Given the variety of freely available accessibility plugins, it is reasonably practicable for employers to make all essential safety and policy documents available online to all workers and other interested parties.

It is not only the health and safety of workers that can be improved by a creating neuroinclusive workplace community. It is also good for business. Neuroinclusive employers consistently report improvements in innovative capabilities, reputational enhancement and greater worker, client, and customer engagement.

Summary and Conclusion

Neurodiversity is the concept that there is a natural variation in the human brain that leads to differences in how all humans think and behave.

A substantial minority of the global population diverges from the typical neurological type and whilst for some their neurodivergence is disabling, not all consider themselves to be disabled and absence of a formal diagnosis does not make them any less neurodivergent.

The employer’s responsibilities under the DDA do not adequately protect neurodivergent workers from discrimination in employment and can reinforce the Medical Model of Disability.

If an organisation’s management systems are structured around neurotypical thinking and functioning, they will potentially exclude and fail to manage risk for a substantial minority of the workforce.

The Viscious Cycle of Non-Disclosure means that if a worker does not feel safe to disclose their neurodivergence, then the employer cannot manage occupational risks as experienced by that worker. But it is the employer that has the Primary Duty of Care to ensure the safety of all workers.

Actively and consciously creating a neuroinclusive culture and systems, regardless of who has been diagnosed or who has disclosed, will benefit all workers, and help the employer discharge their primary duty of care. It also good for business. 

Catherine Lee (She/Her)­
Director and Founder
RN.dipOHN. GradCertMgt. GradDipOHS. COHSProf.
The Neurodiverse Safe Work Initiative

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PO Box 502
North Lakes Qld 4509



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