Autism in the Workplace – a guide to the law

From the TUC Handbook, Autism in the Workplace: 

Definition of disability

Under the Equality Act 2010, a person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities. Autism should qualify as a mental and/or physical impairment.

Unlawful discrimination 

The following actions by an employer are unlawful under the Equality Act 2010: 

Direct discrimination: treating a disabled (for the purposes of this handbook, an autistic) person less favourably than other employees. 
e.g. if an employer gives a bonus to all workers other than the autistic worker. 

Indirect discrimination: applying a provision, criterion or practice that is discriminatory in relation to an employee’s autism. ie. a provision that it does not apply to non-autistic employees, or which puts autistic employees at a particular disadvantage, and is not a proportionate means of achieving a legitimate aim. 
e.g. if a promotion application process includes a social skills test that is irrelevant to the job being applied for and disadvantages an autistic applicant. 

Discrimination arising from disability: treating an autistic employee unfavourably because of something arising in consequence of that employee’s autism, and cannot show that the treatment is a proportionate means of achieving a legitimate aim. 
e.g. if an employer dismissed an autistic worker because s/he rocked on his/her chair at work, even though s/he performed adequately in his/her job. 

Harassment: engaging in unwanted conduct related to the worker’s autism which had the effect of violating that person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the autistic worker. 
e.g. making ‘jokes’ about autism, or imitating an autistic worker in a derogatory fashion. 

The Equality Act 2010 also requires employers to consider and, where appropriate, implement reasonable adjustments: changes to the way things are done in the workplace to remove any physical barriers or provide extrasupport to employees and applicants with disabilities (see Section 7, ‘Making workplaces autism-friendly’ for examples.) What is ‘reasonable’ will depend on all the circumstances of each individual case. Refusal to make reasonable adjustments is unlawful.

Emergency leave

The Employment Rights Act 1996 provides for emergency leave. As an employee, you are entitled to take a ‘reasonable amount’ of time off during your working hours: to assist when a dependant falls ill, gives birth or is injured or assaulted; to make arrangements for the provision of care for an ill or injured dependant; in consequence of the death of a dependant; when your dependant’s care arrangements unexpectedly end or are disrupted; to deal with an incident involving your child at school (or other educational establishment).

You have to tell your employer why you are absent and for how long you expect to be absent, as soon as reasonably practicable.

The law provides a detailed definition of who counts as a ‘dependant’. 

Flexible working

Under the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 and the Flexible Working (Procedural Requirements) Regulations 2002, an employee may apply (according to a prescribed procedure) to work flexibly in order to care for a child under 17, a disabled (for the purposes of this handbook, an autistic) child under 18 or certain dependant adults (this should include many autistic adults). You may apply for a change to hours, times or location of work.

As long as you have complied with the procedural requirements and are eligible to make the application, the employer must then follow a prescribed procedure to consider the request.

The employer may turn down a request for one or more prescribed business grounds.

Community care services

Under the National Health Service and Community Care Act 1990 and some previous legislation, Local authorities and the NHS have a duty to provide services to disabled children and adults, to enable them to continue to live in the community.

Social services have a duty to provide services to a disabled adult who is ‘ordinarily resident’ in their local authority area.

It appears that autism, when diagnosed, must now be included within the legal definition – and that any difference in treatment by a local authority of persons with autism will have the potential to constitute unlawful discrimination.

Local authorities have a statutory duty to assess a person’s needs for community care services.

The funding of domiciliary care services for people with autism is the responsibility of local authorities, with care delivered by social services.

Autism Act 2009

The Autism Act 2009 requires the Government to produce a strategy to improve delivery of social care and health services for people with autism.

The Autism Act requires the implementation of a strategy which will lead to:
1. the provision of relevant services for the purposes of diagnosing autistic spectrum conditions in adults
2. the identification of adults with autism
3. the assessment of the needs of adults with autism for relevant services
4. planning in relation to the provision of relevant services to people with autism as they move from being children to adults
5. other planning in relation to the provision of relevant services to adults with autism
6. the training of staff who provide relevant services to adults with autism
7. local arrangements for leadership in relation to the provision of relevant services to adults with autism.

Fulfilling and rewarding lives – The strategy for adults with autism in England 2010

In 2010, in response to the Autism Act 2009, the government published ‘Fulfilling and rewarding lives: The Strategy for adults with autism in England (2010)’. This sets out the government’s vision for autism services and five areas for action aimed at improving the lives of adults with autism:

  • increasing awareness and understanding of autism
  • developing a clear, consistent pathway for diagnosis of autism
  • improving access for adults with autism to services and support
  • helping adults with autism into work
  • enabling local partners to develop relevant services.

The purpose of the strategy is to make existing policies and public services work better for adults with autism. The government also produced statutory guidance to supplement the strategy. The guidance says it is vital that local authorities ensure that adults diagnosed with autism who may have community care needs are offered an assessment.

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