On 16 November 2023, I provided a presentation at the New Zealand Labour Law Society Conference, on "Neurodiversity in the workplace." While I've previously written about ADHD in employment, in this blog post I wanted to really focus on the rights of undiagnosed employees, because, with the public system only accepting the most extreme cases, and with the private system out of reach for many, diagnosis is becoming more of a privilege than a right: and that's impacting people's employment. It's becoming increasingly common for people to identify as being neurodivergent, or to self-diagnose as having, for example, ADHD or Autism, but feeling in legal limbo when it comes to their ability to have good faith discussions with their employers.
Therefore, in this post, I will discuss the legal basis for accommodating the undiagnosed disability, and provide some information for employees (and employers) who may be engaging in a performance management plan, or a medical incapacity plan, where disability is a core focus of that process. I will also provide some future thoughts about the risks for employers of discrimination claims based in unconscious bias.
Accommodating the undiagnosed disability
Handling accommodation requests for employees with undiagnosed neurodiversity can be a unique challenge, distinct from the more familiar process for diagnosed disabilities. When you have an employee with a physical disability, for example, an employee in a wheelchair, it is often immediately apparent to both the employee and the employer what accommodations are needed. A large part of that essential conversation has just happened based on what the parties can observe about each other and their environment. However, for employees with cognitive disabilities, it is not always apparent to the employee or the employer what accommodations are needed, and this invisibility adds layers of compexity to navigating and understanding the unique needs of neurodivergent individuals in the workplace.
The process for an employee, with a diagnosed disability, who is seeking accommodations is relatively well-known and straight-forward: the parties would have a godo faith discussion about the employee's disability, the impact of that disability on their work, any other barriers the employee is experiencing, and what accommodations the employee may need to assist them. It is common for the employer to seek medical advice to better understand the nature of the employee's disability, and this is for two reasons:
To understand the 'risks' associated with the employee's disability, in a way that allows the employer to comply with its obligations under the Health and Safety at Work Act 2015; and
To understand the accommodations that may reasonably be required, in accordance with the Human Rights Act 1993.
If it turns out that the employer is unable to implement the requested accommodations, or if the proposal otherwise presents challenges, the parties would continue discussions, in good faith, about what alternatives could be provided. This could involve physical changes to the workplace, adjusting work hours, providing assistive technology, or other modifications, and if necessary, training to other employees to ensure that they understand and support the accommodations.
In the long run, the parties would have regular reviews, to ensure that the accommodation continues to meet the employee's needs, and if there are changes to their condition, or their job responsibilities, then the parties may need to continue those good faith discussions, and make adjustments as necessary.
However, what many are unaware of, is that even undiagnosed employee's have rights to make these same requests for accommodations. The simple fact is that, if an employee has, for example, ADHD or Autism, this is a disability that has been present their entire lives. It is not a disability that only exists once the employee is diagnosed, and that means that employers are required to provide accommodations. A formal diagnosis is not the only valid measure of the real and impactful challenges that individuals face, and the absence of a formal diagnosis does not negate the genuine experiences and difficulties that employees may encounter.
The Human Rights Act 1993 supports this approach. Section 21 defines a "disability" as including:
physical disability or impairment.
physical illness.
psychiatric illness.
intellectual or psychological disability or impairment.
any other loss or abnormality of psychological, physiological, or anatomical structure or function.
reliance on a disability assist dog, wheelchair, or other remedial means.
the presence in the body of organisms capable of causing illness.
This "any other loss of abnormality of psychological ... function" definition is rarely used, and in my brief research, there are no cases in New Zealand where this definition has been judicially explored or defined. However, in my view, the words speak for themselves, and in reality when an employee approaches their employer, seeking accommodations because they think they might have, for example, ADHD, what that employee is really saying is that they are experiencing a loss or abnormality of psychological function, which is creating barriers for them, and they would like some accommodation from their employer.
This approach provides for a symptoms-based approach, which does not necessarily require a formal diagnosis. The employer may seek medical information about this "loss or abnormality of psychological function", however, in my view this would be a largely unproductive exercise: a general practitioner is only able to relay what the employee tells them, and unless the employer is prepared to meet the costs of a private physchiatrist or psychologist, the praties are best to focus their good faith discussions on lived experiences, functional impairements, and the day-to-day impacts of these challenges. There needs to be an inherent element of trust, however, considering 'trust and confidence' is the backbone of every employment relationship, there shouldn't be a reason for an employer to seek medical information to 'verify' the disability: they should only seek medical information if it assists them in meeting their obligations under the Health and Safety at Work Act 2015 and/or the Human Rights Act 1993.
Diverse minds, diverse performance: navigating formal performance processes
Unfortunately, there are always situations where an employee is unaware that their disability is impacting their performance, until the employer commences a formal performance process. In this situation, where an employer has embarked on a formal performance improvement plan, and the employee has raised concerns that their performance has been impacted by their disability, the employer is required to seek further medical advice to ascertain whether it's appropriate to continue with the 'routine' performance process (or whether a different process needs to occur). This was the outcome of the Employment Court decision of FGH v RST [2018] NZEmpC 60, and the reasoning provided by the Court was that the employer was required to manage the employee's medical conditions so far as is "reasonably practicable", as required by the Health and Safety at Work Act 2015. It was clear that the employee's actions were not a result of poor performance, but were rather symptoms of her anxiety disorder - and the employer was required to take reasonable steps to manage that risk.
In such a situation it is important to consider whether it is appropriate to commence a health-based approach (rather than a performance process). This is because there are some 'performance' elements that, for a person with a disability, may not be remedied through a routine performance management process. A person with ADHD who struggles with punctuality, is unlikely to succeed under the pressure of a performance management process. An employee with dyslexia is unlikely to overcome challenges with written communication without accommodations. An employee with social anxiety is unlikely to actively participate in team meetings because they are being told to do so. The examples are endless, but in essence, it may be worthwhile considering a health-based approach if the goal is not "achievable" without an accommodation.
When considering the broad definition of a "disability", an employee is not required to have a diagnosed disability to access this same level of support. It may become apparent, through conversations in the performance plan, that the employee is struggling because of a "loss or abnormality of psychological function", and it's up to the parties to have that good faith discussion to determine the next steps: is this something that requires medical advice, should the employer engage an occupational therapist, or is this something that can be resolved between the parties?
Medical "incapacity": is it time for a new process?
However, if it becomes clear that the accommodations sought are not reasonable, or that they aren't adequate to meet the needs of the employee, there will inevitably need to be a conversation about whether the employee can fulfil the tasks and duties associated with their role.
The recommended process for this type of conversation is called "medical incapacity", however, because the employee is not completely incapacitated, there needs to be some variation to the standard process. The parties must have a conversation about the employee's condition, the impact of that condition on their ability to completely fulfil the tasks and duties of their role, and whether there is potential of the employee being able to return to their full duties (for example, after exploring medical options with their healthcare professional).
This conversation can be challenging, because it may be that the employee is succeeding in other areas: for example, they may be late to work, but they are exceedings their targets. They may be underperfoming in one area, but absolutely outshining in another. In my view, this means there equally needs to be a conversation about whether the role can be reasonably modified, so that the employee can work within their limitations: for example, can the role be reduced to part-time, or can some of the tasks be delegated to other employees.
With other 'no fault' terminations, there is often the requirement to consider all reasonable alternatives to termination of employment, and in my view, this is the process that needs to be followed. This is somewhat similar to the process that was required when an employer terminated the employment of an employee who was not vaccinated. While I appreciate there was a legislative requirement to "exhaust" all reasonable alternatives to termination of employment, in my view this requirement clarified the law (rather than changed it), and with cases coming through the Employment Relations Authority and the Employment Court we are seeing a high standard required of employers when considering alternatives: particularly if those alternatives are not required on a permanent basis (or where it is reasonable to 'trial' the accommodation before making any permanent changes).
Risks of unconcsious bias
In my view, the broad definition of disability, paired with the increased rates of self-diagnosis of cognitive disabilities, raises the risk of claims based in unconscious bias for employers. Unconscious bias is when we make quick judgments about people, often without us even realising it. When it comes to disabilities, this bias can play a role in how we perceive someone’s abilities, especially if the disability is not obvious or officially diagnosed. In a real-life situation, imagine an employee navigating a performance management plan, who is not aware that their undiagnosed ADHD was at the root of their challenges. The employer, unaware of the employee’s disability, initiated the plan based on concerns about productivity and performance. The employee felt confused by the process, and the supports provided by the employer weren’t of great assistance. The employee did ask for some ‘accommodations’ like flexibility, a quiet workspace, regular one-on-ones and task delegation, however, the employer did not want to deviate from their routine performance improvement plan template. The employee failed to mee the employer’s expectations, and the result is that the employee is terminated.
Fast forward a few weeks, and the employee receives a diagnosis of ADHD. Looking back, they realise that many of the issues raised in the performance plan were tied to their neurodivergent condition, and they feel aggrieved that the employer didn’t consider the accommodations they requested. While they weren’t aware of their disability, they were aware of the accommodations they needed to bring the best version of themselves. In this context, the employee might have grounds for a claim of discrimination based on unconscious bias.
Let’s consider another example, imagine an employee asking for flexible working hours because they’re dealing with an invisible disability. Unconscious bias might lead others to question the request, assuming its not necessary or thinking the employee is “lazy” or just wants special treatment. This misinterpretation can lead to discrimination because the employee’s valid need for flexibility was not understood or appropriately considered by the employer. It’s important to be aware of these biases, as they can impact decisions about accommodations and opportunities.
One trend I’m noticing, and promoting, is for employees with undiagnosed disabilities utilising their rights to make a request for flexible working arrangements under part 6AA. In some ways, these requests can be seen as being requests for accommodations in disguise, and in my view, employers should be very attuned to this when they are considering these requests. If an employee has disclosed that the reason they are making this request, is because they have some loss or abnormality of psychological function, then this should be a huge indicator that this is actually a human rights process, and not a ‘flexible working arrangements’ process.
This is no longer a process where an employer can simply refuse the request for one of the grounds listed in section 69AAF (including inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, etc), and their decision is essentially shielded from challenge. This becomes a question of whether the employer genuinely considered the employee’s request for a reasonable accommodation, and if they failed to do so, they risk a claim of discrimination.
Conclusion
As we explore the intricacies of what it means to have a disability, it becomes clear that embracing cognitive diversity requires a shift in perspective and a commitment to fostering an environment where everyone, regardless of neurodivergent status, can contribute their best. It takes a shift in perspective because, when you have diagnosed and undiagnosed employees asking for accommodations, you’re really just getting employees who are identifying their barriers, and who are seeking support. It becomes a conversation which focusses on symptoms, and not labels, and is less about an “us” and “them” approach. It becomes an approach where the employer considers its resources to meet everyone’s needs. This is a journey that involves awareness, education and a collective effort to create workplaces that truly value and accommodate the richness of diverse minds. We aren't there yet, but I think that, in time, we’ll get there.
