The Retailer Summer Edition 2022

THE RE TA I L ER

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DISABILITY AND NEURODIVERSE WORKFORCE

Lisa Hodgson Legal Director, Employment DLA Piper

Simran Khosla Trainee Solicitor, Employment DLA Piper

W ith an increased focus on disability aware ness, we are seeing more retailers set up employee forums and networks that aim to create a more inclusive environment. Defining disability and a neurodiverse workforce and customer base In the UK, a disability is defined by the Equality Act 2010 as a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ nega tive effect on someone’s ability to do normal daily activities. Amongst other rights, the Act imposes an obligation on employers to make “reasonable adjustments” to remove disad vantages experienced by job applicants and employees with disabilities. Such adjustments may include accommodations such as remote working, flexibility with hours and extra time to do tasks. Often, guidance is needed from medical professionals such as Occupational Health practitioners or specialists, to support the employer in making these changes. The term ‘neurodiversity’ generally refers to people with conditions such as ADHD, autism, dyslexia and other neurological conditions. An estimated one in seven people in the UK are neurodivergent, with numbers on the rise . Therefore, there is a high chance that neurodivergent people make up a substantial proportion of both retailers’ workforces and customer bases. How retailers can make a difference to customers A recent survey reported that 78% of disabled people noted ‘extreme difficulty’ in accessing shops, and two-thirds reported that a retailer’s physical accessibility determines whether they will visit that store or shop elsewhere . In the UK, retailers’ obligations go wider than just protecting employees and job applicants with disabilities, with customers also being protected from disability discrimination too.

Whilst historically retailers may have been focussed on removing barriers to access for those with physical disabilities (such as installing ramps where there are steps at the entrance to stores, for example), more and more retailers are now focussing on thosewith neurodiverse needs – consideringwhat can be done to improve their shopping experience. For example, stores such as Superdrug, Sainsbury’s andTesco have introduced in-store ‘quiet hours’ for the benefit of neurodivergent customers so that they can shopwith less sensory stimulation. Reporting – is it enough? There is no legal requirement for companies to collect data on disabilities and employees often do not disclose information, for fear of adverse treatment. As part of their D& I agenda employers need to be educating everyone in the workplace on discrimination issues - to try and gain and maintain the trust of disabled staff, supporting them to tackle obstacles in the workplace. The UK Government recently consulted on mandatory disability workforce reporting. Following this, the Business Disability Forum (BDF) collected the views of both employees and employers, subsequently publishing a report that concluded that mandatory reporting would not reduce the disability employment gap or improve inclusive experiences of work. In fact, the research showed that a high number of disabled employeeswithin aworkplace is not a true indication of an inclusive environment. It was found that both employers and employees were concerned that such mandatory approach to reporting would actually be counterproduc tive, risking “labelling” those with a disability, rather than promoting inclusivity. Following its research the BDF has set out a number of recommendations for the future, including a push to focus on the experience disabled people have at work, rather than scru tinising the number of disabled people in an organisation. The UK Government’s response to the BDF’s recommendations is due to be published this year.

Next steps Whatever the response, it is clear that going forward, retailers must have active conversa tions about how those who are disabled (both employees and customers) - including those with neurodivergent needs - can be supported. We are seeing more and more retailers set up employee forums and networks focussed on supporting those with disabilities to increase awareness and also specific employee train ing on the topic. The online retailer ASOS, for example, has recently launched an employee disability network that provides advice and training to managers and new employees on how best to have conversations regarding dis ability. On the customer experience side, M & S also has mandatory staff training on how to welcome and support customers and their assistance dogs when shopping. On 3 December 2021, the International Day of People with Disabilities, we at DLA Piper launched Enabled, our own ability people net work, supporting anyone affected by a disability, neurodiversity, or physical or mental wellbeing issue. Lisa Hodgson, a Legal Director in our Employment practice, would be delighted to connect with any of our readers on any of the topics explored in this article – or indeed share further details regarding our own ability network.

Lisa Hodgson lisa.hodgson@dlapiper.com

Simran Khosla Simran.khosla@dlapiper.com