Preface 

The contents of my article are lifted from a legal essay competition, where my entry ranked within the top six nationally and received special mention. I wish to thank the National Autistic Society for the opportunity to share what I believe is an underdiscussed yet important matter. Accordingly, I have shortened the content and removed legal jargon and specific page references to improve readability. However, where I refer to a particular person’s work or a legal case, the sources have been retained for clarity and credibility.

Introduction

This article examines case law (ie judges’ decisions in court cases) to identify accountability gaps and analyse why, despite the enforcement of the Equality Act 2010, autistic individuals continue to face discrimination at work. It proposes potential reforms and concludes that a collaborative approach, with regular consultations involving Parliament, Government, the Equality and Human Rights Commission (EHRC), non-governmental organisations (NGOs) and employers, is crucial to uphold the provisions of the Equality Act 2010 effectively.

Background

The Equality Act 2010 (hereinafter ‘the Act’) safeguards individuals with protected characteristics from discrimination; disability is one of the nine protected characteristics. Discrimination can be direct or indirect, and employers are required to make reasonable adjustments for disabled employees and protect them against unfair treatment, barriers and assumptions.

The Government’s 2021-2026 strategy aims to enhance autism awareness and support autistic people in education and employment. Meanwhile, employers participate in disability-confident schemes and advertise their commitment to equality, diversity and inclusion (ED&I). However, only 30% of working-age autistic individuals are employed, and autistic graduates are twice as likely to be unemployed after 15 months, with only 36% securing full-time positions, highlighting ongoing workplace challenges.

Enforcement issues 

Laws are in place, yet enforcement and application are lacking. The Act is passive: individuals must initiate legal action for remedies, but the costs and stress of litigation against more resourceful organisations can be discouraging. Autistic individuals also fear discrimination during recruitment, with subtle discrimination difficult to prove, leaving them torn between investing time in uncertain outcomes or treating the experience as a learning opportunity, undermining confidence in the very Act designed to protect their rights. 

Although the EHRC has the power to enforce the Act, issue guidance and investigate breaches, it does not act as a regulator. Instead, its role is to advise and monitor. Critics argue that the EHRC does not use its enforcement powers as often as it could and focuses more on research and public communication.  

Additionally, despite genuine attempts to improve workplace culture, anti-discrimination training itself may be ineffective because of, for example:
•    the bystander effect – a psychological theory whereby individuals are less likely to help another person in the presence of others
•    fear of employer retaliation – lack of confidence in the reporting process and authoritarian leadership
•    varying interpretations of ‘reasonable’ in reasonable adjustments – if influenced by personal biases, perceived costs or prevailing office etiquette, it may lead to indirect discrimination.

What did the courts conclude?

The case of Sherbourne v NPower explains how management failures, misuse of the capability procedure and failure to make reasonable adjustments for Sherbourne’s sensory difficulties led to indirect discrimination. NPower applied a policy that was neither necessary nor proportionate, which put Sherbourne at a significant disadvantage. Such failure also contributed to Sherbourne’s unfair treatment and dismissal.  

Wright v Cardinal Newman Catholic School illustrates how overlooking Wright’s disability, labelling him as difficult and claiming dismissal due to ‘capability’ and ‘relationship breakdown’ amounted to disability-related discrimination. The headteacher’s claim that Wright took up a significant amount of the senior leadership’s time over three years shows how managers may shift accountability due to perceived difficulties or bias. In fact, Wright was simply following the procedures available to him. A formal performance management approach that genuinely attempted to understand each perspective might have improved relationships and revealed underlying issues. The generous settlement offer requesting Wright’s departure suggests that the employer’s financial resources (or insurance) can be used to avoid accountability. However, employment tribunals have specialised knowledge in handling such cases; it found that Wright was capable and that his dismissal was directly discriminatory.

What can be done? 

Both cases (Sherbourne; Wright) highlight how discrimination stems from non-accountability and misconceptions about autism. 

1)    Perhaps NGOs may bridge the gap by advocating for stronger regulations. Consider, for example, the Financial Conduct Authority, which prevents market misconduct and actively enforces legislation enacted by Parliament. Therefore, while NGOs do not regulate, they influence policy by encouraging the Government and employers to support, fund and implement employment and education programmes. Consider how managers receive mentoring or coaching as part of their progression, yet there is a lack of targeted professional skills training for autistic employees. Given the high unemployment rate among autistic individuals despite their valuable, untapped skills, facilitating fair opportunities to ensure compliance with the Act is in the public interest. In cases where a role is genuinely unsuitable, despite sincere efforts to accommodate autistic individuals, career guidance workshops can help identify suitable positions.

2)    The EHRC could conduct regular checks on large employers and require fair, unbiased systems for reporting and reviewing disciplinary action in cases of non-compliance. Addressing multiple claims within a sector instead of isolated incidents can foster public debate and cultural change, aligning enforcement with the scale of the issue and leveraging powers for meaningful sector-wide reform. 

3)    The law should mandate accurate representation of autism in the media to help dispel misconceptions and reduce stigma. 

Conclusion 

The Equality Act 2010 requires employers to promote equality and prevent discrimination in the workplace, but enforcement and application are currently insufficient due to a lack of accountability. Promoting ED&I is important, but ineffective if not implemented in practice or governed by stricter laws and regulations. Empowering autistic individuals with their legal rights and equitable opportunities benefits employees and employers long-term. Proactivity is essential; management should reflect on how they would respond if they or their families experienced discrimination. Parliament enacts legislation, and the EHRC and NGOs should advocate for stricter regulations to ensure accountability. The Government should enforce compliance, and employers should genuinely integrate and apply ED&I initiatives into practice.