Legal Q&A
In this section we were supported by the Kenton Legal Clinic to provide responses to questions we have received from our user community.
Whilst every care has been taken to ensure the accuracy of this information at the time of its publication, the information is intended as guidance only. It should not be considered as legal advice. If in any doubt, please seek advice from a qualified legal professional. Please also see our Resources section where we have more information about services offering legal advice on employment matters.
If you have any comments or suggestions for us, or would like to share your own employment story, please contact us.
I was unsuccessful at interview and found out I could have asked to see the questions in advance. I really think this would have helped. Although I disclosed my autism and asked for the questions in writing in front of me while I answered, should they have made me aware of other adjustments?
Although it would have been helpful for the organisation to let you know of specific adjustments, or suggestions for adjustments that they would or could offer in advance of the interview, we do not think they were legally obliged to do so.
With that being said, the organisation may have been under a duty to make other adjustments to further reduce any disadvantage you experienced as a result of your diagnosis. This could include having given you the questions in advance. The question is not whether they should have given you a menu of adjustments but rather, whether they took sufficient steps to avoid any disadvantage that you may have experienced, when compared to other non-disabled candidates.
This question is fact-sensitive and much will turn on the nature of your diagnosis. The prospective employer may, for example, argue that they did fulfil their duty to avoid the disadvantage by allowing you to have the questions written in front of you whilst you answered.
If you are considering making a claim or taking any further steps we would suggest getting legal advice as soon as possible. You can find out more about where you can get this advice here.
Following this experience, perhaps think about keeping note of the adjustments that would be helpful for you, so that you can be ready to ask for these in advance of your next interview. Seeing the questions in advance is only one suggestion, you will need to think about what will work for you. It may be that your adjustment request will not be the same for every interview, but will depend on the organisation or role that you are applying for and the recruitment process.
Our section on applying for work has more information on telling an employer that you are autistic.
Employers and work providers also have duties when an applicant or employee discloses that they are autistic, and when recruiting and managing autistic employees.
Our Resources section has more information about services offering legal advice on employment matters.
I have diagnosed myself with autism. Can I still ask a prospective employer for adjustments, even though I don’t have a formal diagnosis?
Whilst you certainly can ask for adjustments to be made you need to be prepared for what might happen if your prospective employer pushes back, asks for further evidence or declines your request. (See also the previous Q&A about providing evidence of your autism.)
An employer’s duty to provide reasonable adjustments is triggered when it knows or reasonably ought to know that:
- the employee in question is disabled; and
- the employee in question is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
Your employer may decline your request on the basis that they do not consider you to be disabled for the purposes of the Equality Act 2010 and therefore not entitled to reasonable adjustments.
If you decide to contest your employer’s decision you will need to commence proceedings in the Employment Tribunal to do so ( you may wish to file a formal grievance and try early conciliation through ACAS before doing so.
An Employment Tribunal will then try to determine whether you are disabled for the purposes of the Equality Act 2010. Case law suggests that unless the answer to this question is obviously that you do have autism, the tribunal is unlikely to find that your employer should have provided adjustments in the period between your initial request and their determination as to your disability.
Whilst statutory guidance states that a medical diagnosis is not strictly required when proving disability, you should note that expert medical evidence is routinely called for by tribunals when they deal with autism and other mental, behavioural and cognitive conditions. You may end up, therefore, undergoing an examination and diagnosis in any event.
As we have mentioned above, you can certainly ask for adjustments and you may find that your employer provides them to you without asking for further evidence. You should, however, consider getting examined and diagnosed if your employer decides to push back.
Our section on applying for work has more information on telling an employer that you are autistic.
Employers and work providers also have duties when an applicant or employee discloses that they are autistic, and when recruiting and managing autistic employees.
Our Resources section has more information about services offering legal advice on employment matters.
Do I need to provide medical evidence to my employer that I am autistic if I want to ask for adjustments?<
This is totally up to you and there is no legal requirement for you to disclose that you are disabled or provide medical evidence to prove this. In fact, in the context of job applications, any unnecessary enquiries about health or disability might fall foul of the Equality Act 2010 rules prohibiting pre-employment health questions.
With that being said, providing medical evidence of your autism may be helpful when asking for reasonable adjustments to be made both when applying for jobs and whilst in work. This is because an employer is not under a duty to make reasonable adjustments if it does not know, and reasonably could not be expected to know that an employee has a disability and that this is liable to disadvantage them substantially.
Whilst employers are expected to take reasonable steps and have systems in place to find out whether reasonable adjustments should be made, there will be no question that the duty has arisen if you are able to provide medical evidence that demonstrates you have autism and that you need adjustments to be made as a result.
For further information, see our section on applying for work has more information on telling an employer that you are autistic.
Employers and work providers also have duties when an applicant or employee discloses that they are autistic, and when recruiting and managing autistic employees.
Spoken words, banter, social media posts, jokes and pranks can all constitute harassment – a form of discrimination – if they relate to your autism.
Broadly speaking, such actions will constitute harassment if:
- they were carried out for the purpose of violating your dignity and/or creating an intimidating, hostile, degrading or humiliating environment for you; or
- the effect of these actions was to violate your dignity or create a hostile, intimidating, degrading or humiliating environment for you.
For the purposes of the law, if you can prove the former you will not need to prove that it was reasonable for you to have felt offended or harassed by your colleague’s actions. Whether or not your reaction was a reasonable one will not be considered
If, however, you cannot prove that the unwanted conduct was intended violate your dignity or create a hostile environment, a tribunal will need to consider all of the factors of the case. These factors include your personal circumstances, the circumstances in which the offensive action took place, what the intentions of the offending party were and whether the employer has taken any steps to deal with and improve the situation.
If you feel you have been harassed by a colleague, your first step should be to contact your employer and inform them of the problem
You should also ask them what systems they have in place and steps they have taken to prevent such harassment from taking place in the first place. Your employer, in general, is responsible for the conduct of your colleagues. If your employer does not take adequate steps to deal with the complaint, they will fall foul of the Equality Act 2010.
If it turns out that your employer has received such complaints before but not dealt with them adequately and/or does not have an appropriate equal opportunities policy in place you may be able to hold them responsible for the harassment you have faced. Their failures will constitute a form of discrimination under the Equality Act 2010. Your next steps will be to either file a grievance, report the matter to ACAS or commence proceedings in the Employment Tribunal.
* See also our guidance for employers on looking out for bullying in our section on addressing concerns, and further information on discrimination
The canteen at work is my ‘safe place’ where I go when I’m stressed and need to chill out. But it’s now closed due to Covid. We all normally stay on site during normal working hours, can I ask to go to a café off site if I’m stressed?
If your stress arises as a result of your autism, you should be able to ask your employer to make reasonable adjustments to ensure you are not substantially disadvantaged by it.
Being provided with, or allowed to visit a safe space where you can de-stress is likely to constitute such an adjustment
You should contact your employer, explain your situation (in particular that you feel disadvantaged by not having a space to de-stress in) and ask whether you can visit a nearby café. As long as doing so would not be particularly disruptive or impractical, your employer should allow you to do this.
It may be a good idea to agree any variations to your adjustments with your employer in advance. For example, for health and safety reasons, they may need to know if you will be off site at a café, instead of on the premises.
I’ve had a video interview and they offered me a job. What happens if I don’t like the working environment when I finally see it, as I won’t be able to visit in advance?
Your first step should be to consider whether the situation could be improved by your employer making changes to your environment. Your employer has a legal duty to make reasonable adjustments to its working environment and practices to ensure that you are not disadvantaged as a result of being autistic.
If you feel like changes would improve your working environment you should contact your (prospective) employer explaining:
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that you have autism and your needs;
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the issue you are having and why you feel disadvantaged; and
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the change you would like and how you feel this change would improve the situation.
In the unlikely situation that the working environment cannot be improved by reasonable adjustments and you do not wish to work for that employer, much will turn on whether you have signed an employment contract and what the terms of that contract are.
If you have not formally accepted your role or signed an employment contract it is likely you will be able to walk away from the job at this stage.
If, however, you have signed an employment contract you will need to examine its terms carefully and we would recommend seeking specialist advice on this. Many contracts of employment, for example, contain probationary periods whereby either party can terminate with a much shorter notice period but this is not always the case.
See our Resources section where we have more information about services offering legal advice on employment matters.
Now that many are working from home, can adjustments which have already been made be reproduced? I have a special chair and light at work. Can I ask my employer to buy me these for use when working from home.
Assuming that the special light and chair were bought in response to a disability or medical condition they are likely to have been reasonable adjustments made by your employer.
A reasonable adjustment is an adjustment brought in by an employer that aims to alleviate substantial disadvantages experienced by disabled employees. It can take the form of a change to a policy, a change to the working environment or the provision of additional equipment and support.
If the pandemic has led to you having to work from home, and the absence of your chair and light is making your job substantially more difficult as a result of your autism, you should ask your employer to buy these for you. You should make this request in writing and set out the nature of your disability and that you need the light and chair to prevent you from being substantially disadvantaged by having to work from home.
Your employer will need to assess whether your request is reasonable given all the circumstances.
If the request is reasonable, your employer should pay for the entirety of the cost of supplying you with the light and chair.
If, however, your employer refuses supply you with the light and chair their actions may constitute discrimination. In the event this takes place you should seek specialist advice as soon as possible and consider filing a grievance. Ultimately, you can take your employer to the Employment Tribunal for a failure to make reasonable adjustments.
Our Resources section has more information about services offering legal advice on employment matters.
Am I required to disclose my autism to a potential future employer during the interview process?
You are not required to disclose your autism to a potential future employer during the interview process.
It would be unlawful and potentially discriminatory under section 60 of the Equality Act 2010 for an employer to ask you questions about your autism before making you a job offer
There are a few limited exceptions to this, such as where the potential future employer is looking to establish whether or not there is a duty to make reasonable adjustments in connection with the recruitment process (for example, by asking you if you need the interview to take place in a certain format). Any such questions should be phrased in a broad and generic way and should not require you to specifically disclose the fact or nature of your autism.
Our section on applying for work has more information on telling an employer that you are autistic.
Employers and work providers also have duties when an applicant or employee discloses that they are autistic, and when recruiting and managing autistic employees.
Our Resources section has more information about services offering legal advice on employment matters.
My employer has brought in a mandatory PCR testing policy, do I have to comply with this?
Your employer should have consulted with either you, your representative or (if applicable) your union before bringing in a mandatory testing policy
If, however, a policy has been implemented, your options will turn on whether your employer’s instruction is reasonable and lawful in the eyes of the law. As discussed below, if your employer’s instruction is reasonable, non-compliance potentially could result in your employer commencing disciplinary proceedings against you.
Is the instruction reasonable?
The starting point in assessing reasonability is to check whether there is a specific clause within your employment contract that grants your employer the right to require you take COVID tests. The existence of such a clause would likely mean that the testing policy is reasonable
The nature of your role, in particular whether it involves being in close physical proximity with others, will also affect whether such an instruction is reasonable
If your job necessarily involves contact with others, and therefore the risk of the transmission of COVID, it is more likely that an instruction to test frequently will be a reasonable one. If, however, adequate social distancing could reduce the risk of infection sufficiently, the instruction is less likely to be reasonable.
Another important consideration is whether your employer has brought in the policy of its own accord or as a result of an external demand from a client or another third party. A common example of this is where the managing entities of construction sites require everyone on site, including contractors and their employees, to carry out routine PCR tests.
If your employer has brought a testing policy to meet client or other external demands, their actions are more likely to be considered reasonable.
Communicating your concerns
Notwithstanding the above, if you find that your autism makes testing especially stressful or difficult, you should communicate your concerns to your employer
Your employer has a duty to make reasonable adjustments to accommodate your situation
These adjustments could include assigning you a role that does not involve you being in close proximity to others. You can read more about reasonable adjustments here. Compelling you to take a test despite you communicating these concerns could constitute unlawful discrimination. You should seek advice if this takes place.
If your concerns relate to the personal data your employer could potentially hold as a result of the testing process you should seek written assurances from them that they are aware of, and will comply with, their data protection obligations under the General Data Protection Regulation (GDPR). You could also ask your employer to supply you with lateral flow tests which do not involve any third party administration or collection of data.
If instead you are concerned about the impact of potential self-isolation following a positive result, you could ask your employer to commit to continue paying you during any period of compelled isolation and to not allow this period to erode any of your annual leave allowance.
Furlough
You could also request that your employer furlough you on the basis that there is not enough work available to you that does not require you to participate in frequent testing. You should be aware, however, that even if your employer agrees to this, the furlough scheme is due to come to an end on 30 September 2021.
Non-compliance
If your employer’s policy is reasonable (as discussed above) and furlough is not an option, you should be aware that non-compliance could constitute a breach of an implied or express term of your employment contract.
Whilst ACAS currently discourages employers from commencing disciplinary proceedings for such non-compliance, your employer may still choose to do so. Provided your employer follows proper disciplinary procedure this could eventually result in dismissal.
What is a reasonable adjustment, how do I know if what I’m asking for is reasonable? How is this affected by the Covid guidelines?
The Equality Act 2010 can, in certain circumstances, require employers to make changes that ensure that anyone with a health issue, disability or other condition can do your job as well as your colleagues.
These changes are referred to as “reasonable adjustments” and you may be entitled to one if you find that, as a result of being neurodivergent, you are “substantially disadvantaged” by one or more of the following:
- a rule, practice or other working arrangement, such as not having an allocated desk; .
- a physical feature of your workplace – for example, bright overhead lighting or a desk that faces the back of a room; or
- not having extra equipment or help, such as a career coach or a desk lamp.
Importantly, your employer must pay for these adjustments. You should not have to contribute to their cost
What does substantial disadvantage mean?
“Substantial disadvantage” is defined by the Equality Act as “more than minor or trivial”.
As a result, this isn’t likely to cover a scenario where a task takes you a few minutes longer than your colleagues. If however you find that you are constantly falling behind, feel excluded or that your working environment makes it difficult for you to focus this is likely to constitute a “substantial disadvantage.”
Do I have to tell my employer I am autistic to get reasonable adjustments?
An employer will only be expected to make reasonable adjustment for you if it knows, or reasonably ought to know that:
- you are disabled (for the purposes of the law); and
- you are experiencing a substantial disadvantage (see above).
Whilst your employer is advised, under the law, to do all it reasonably can to find out this information, you should inform them of your position in writing to avoid any doubts.
The duty to make reasonable adjustments also applies to the recruitment process so you may wish to consider telling potential future employers that you need adjustments to be made to the interview and recruitment process so that it is fairer to you.
How do I know if what I’m asking for is “reasonable”?
This is a context-sensitive question and will turn on your employer’s particular circumstances. It will, however, need to consider:
- the extent to which the adjustment will help reduce the disadvantage in question;
- how practical it is;
- how expensive it is;
- how disruptive it would be; and
- where the work takes place in a household, how much the adjustment would disrupt the lives of the people living there
The above are questions that a court or tribunal would try to answer when determining whether an adjustment is reasonable.
Reasonable adjustments and COVID guidelines
Your employer may be considering, or may already have implemented, a series of changes to ensure that your workplace is COVID-secure. This could include a variety of different changes such as placing you in a new part of the premises to ensure social distancing can be maintained or asking you to work from home on a more regular basis.
If you find that these changes are preventing you from doing your job well, you should ask your employer to make reasonable adjustments to their policies to help you deal with this. You could, in the case of being asked to work from home for example, ask your employer to have managers check in with you more often to ensure that you’re getting the support you need. Or in the case of being moved to a different workspace, you could ask your employer to ensure that the new working environment is not disruptive to you.
My child is autistic and in order to take her to a medical appointment I need some time off work. Can I request this from my employer?
Provided you have worked for your employer continuously for at least one year, you are entitled by to take unpaid parental leave to care for your child
In total, you are entitled to take 18 weeks’ unpaid parental leave for each child, until the child is 18 years old. You may not take more than 4 weeks’ of parental leave in any one year. If you are taking parental leave to care for a child with autism, your employer should permit you to take the leave one day at a time (rather than having to take it in week-long blocks, for example).
By law, you should give your employer 21 days’ notice of parental leave but it may be the case that your employer agrees for you to provide less notice than this, so it is worth checking whether your employer has a policy in regards to parental leave. You could do so by looking at your Staff Handbook or speaking to a member of Human Resources. Some employers may even be willing to continue to pay you whilst you are on parental leave, although they are not obliged to do so.
Your employer may request that you postpone your parental leave if they have a ‘significant reason’ to do so, such as serious disruption to the business. If your employer postpones the parental leave, they must write to you explaining why within 7 days of the original request and suggest a new date.
It is also worth noting that, in an unexpected and emergency situation, you are entitled to take unpaid time off work to care for your child – this is known as emergency leave. Emergency leave would not be appropriate where you need to take your child to a planned medical appointment, but if a medical emergency arises, you would be entitled to take unpaid emergency leave and your employer may not penalise you for doing so. You should let your employer know of the emergency as soon as possible and provide an estimate as to how long you think you may be off work.
