The next few years are introducing landmark changes to employment law in the UK, under the Employment Rights Act 2025. Part of these changes include the amendments to rights to unfair dismissal, reducing the qualifying period for this right to six months.
One of the results of this change, is going to be more robust recruitment and probation periods. In a job market that is already competitive, and where those with hidden disabilities can often be overlooked, this change represents further barrier for individuals with disabilities.
In this landscape of change, it is not uncommon for diversity and inclusion practices, or proactive actions to protect employees with disabilities, to be left behind. Instead of moving away from these initiatives, processes ought to be being improved and employers challenging themselves to be more inclusive and flexible.
In this article we will explore the legal protections that those with hidden disabilities have, and why taking proactive action to ensure fair and inclusive recruitment and employment practices is in the best interests of employer and employees alike.
Understanding disability and neurodiversity
Under section 6 of the Equality Act 2010, a person is disabled where they have a physical or mental impairment that has a substantial and long term adverse effect on their ability to carry out normal day to day activities. Importantly, this is a legal rather than a medical test. Employers can have legal obligations where they knew, or reasonably ought to have known, about a disability.
Neurodiversity is becoming an increasingly important workplace issue, with an estimated 10 to 15 per cent of the UK population identifying as neurodivergent. Whilst the test for disability is a legal test taken on a case by case basis, the case law for conditions under this umbrella is broad, and includes conditions ranging from dyslexia, dyspraxia, autism and ADHD all amounting to disabilities.
A common challenge for employers is that neurodiversity can be a hidden disability. A lack of awareness or understanding of neurodivergent traits can result in conduct, performance or communication issues being misunderstood, potentially exposing employers to discrimination risks.
The importance of reasonable adjustments
Employers have a duty to make reasonable adjustments where a disabled applicant or employee is placed at a substantial disadvantage. This duty may arise from workplace practices, physical features of premises or a failure to provide auxiliary aids.
Knowledge is often the key issue. Once an employer is aware, or should reasonably be aware, of a disability and that the employee is struggling with an aspect of the role because of this disability, it must consider what adjustments may be appropriate. The responsibility is on the employer to proactively explore solutions with the employee, and the duty is ongoing as circumstances may change over time.
Practical adjustments can include noise cancelling headphones, software that supports reading and writing, regular check ins, additional planning tools, flexible workspaces and early communication of workplace changes. These measures can help employees overcome barriers and perform effectively in their roles.
Employers have a duty to make reasonable adjustments where a disabled applicant or employee is placed at a substantial disadvantage.
Preparing for changes to unfair dismissal rights
As we mentioned in the introduction, the reduction in the qualifying period for ordinary unfair dismissal claims is likely to significantly impact how employers recruit and run probation periods. This change takes effect from 1 January 2027, and we are already seeing this impact in the recruitment processes.
This change is likely to increase scrutiny of recruitment decisions and probationary processes. Employers will have less time to assess suitability of an employee, and are more likely to make quick decisions. In this environment, those with hidden disabilities, who may take longer to adapt to the role or need additional support, are likely to be the worst impacted. This also increases risks for employers who make rash decisions without considering first if disability is a factor in any performance issues.
Managing disability during probation
Probation does not remove an employer’s obligations under equality legislation. Where attendance, performance or conduct concerns emerge, employers should take steps to understand whether an underlying medical condition could be contributing to the issues.
If a condition may amount to a disability, employers should consider reasonable adjustments and avoid treating employees unfavourably because of disability related absences. Similarly, where workplace behaviours are linked to an employee’s condition, dismissal without proper consideration of those factors may create significant legal risk.
Creating a neuroinclusive workplace
The most effective approach is often a proactive one. Employers should invest in training for managers and staff on neurodiversity, ensure managers understand their responsibilities regarding reasonable adjustments and review workplace policies and procedures.
There are services available to support employers and employees in creating a neuroinclusive workplace, including Access to Work, which can provide funding for reasonable adjustments, and government Supported Employment schemes that can match employers with neurodiverse employees who suit their requirements. Our employment team can also provide advise and guidance on proactive steps, as well as support when situations don’t go to plan.
By embedding inclusion into recruitment, probation and day to day management practices, organisations can improve employee experience, increase retention, and reduce the risk of costly disputes and tribunal claims. Contact our Employment team for tailored support and practical guidance.
