March 30, 2026
Have you heard of "constructive knowledge"? 90% of Chief People Officers and HR Directors we speak with at National Neurodiversity Training haven’t, yet it’s one of the biggest people risks facing organisations.
Under the Equality Act 2010, employers have a duty to make reasonable adjustments for disabled employees. This includes neurodivergence - autism, ADHD, dyslexia, dyspraxia, dyscalculia, Tourette’s, and more - because it has a substantial and long-term adverse effect on an employee's ability to carry out day-to-day activities (s.6, Equality Act 2010).
Most importantly, the duty to make reasonable adjustments does not arise only when an employee formally discloses their condition. Section 15(2) of the Equality Act 2010 provides that an employer escapes liability only if it did not know, and could not reasonably have been expected to know, that the employee had a disability.
But what if an employer or manager could have reasonably known someone is neurodivergent, even if they didn’t disclose? This is constructive knowledge.
It means that if observable signs of a neurodivergent condition were present, such as patterns of behaviour, common neurodivergent traits, performance difficulties, or disclosures of overlapping conditions like mental health, then the law treats that employer as knowing.
The absence of a formal diagnosis or disclosure is not a defence to not provide support.
But how should employers know someone is neurodivergent even if they haven’t disclosed? Especially when it’s not legal to directly ask an employee, "Are you neurodivergent?”
Neurodiversity support and understanding constructive knowledge is a rapidly escalating legal exposure that is already generating significant claims volumes across UK employment tribunals.
Between the first half of 2020 and the first half of 2025, ADHD-related employment tribunal decisions increased by 750% - from just 6 cases to 118. Autism-related cases rose to 121 in 2025 alone, nearly doubling over the same period. Dyslexia cases rose 78%, and dyspraxia cases increased by 175%.
Overall, neurodiversity-related tribunal cases almost doubled in five years, with 13% of companies in the UK taken to neurodiversity tribunal, recorded by Irwin Mitchell.
Neurodiversity now represents one of the fastest-growing areas of employment litigation in the UK.
The trajectory will continue upward. The Employment Rights Act 2025 extends the tribunal limitation period for most claims from three to six months.
Employees will gain unfair dismissal rights after six months rather than two years from January 2027. Employers who are not acting proactively now will face a more complex and costly legal neurodiversity landscape very quickly.
To understand why constructive knowledge matters so much in practice, consider the disclosure landscape your organisation is actually operating in.
According to Pearn Kandola's Neurodiversity at Work 2024 report, which surveyed 600 neurodivergent workers in the UK, 63% of neurodivergent employees are masking their condition from colleagues. Masking (the conscious or unconscious concealment of neurodivergent traits to fit in) is widespread, psychologically costly, and legally invisible to employers who do not know what to look for.
Research from Birkbeck, University of London, found that 65% of neurodivergent employees fear discrimination from management if they disclose. A further 76% of employees chose not to fully disclose their neurodivergence, with only 17% reporting that their organisation had a clear process for making such a disclosure.
This creates a structural problem. Employees who need support are not asking for it, because they do not feel safe doing so. Employers, absent training, are not recognising the signs. And the legal obligation - the duty to make reasonable adjustments and offer them proactively - sits with the employer throughout.
An estimated 1 in 5 people in the UK are neurodivergent. In a workforce of 1,000 employees, that is approximately 200 individuals. The realistic probability that a significant number of them have not disclosed, and are not receiving appropriate support, is high.
When a tribunal considers whether an employer had constructive knowledge of a neurodivergent condition, it does not ask whether the employer knew the specific diagnosis. The test, established by case law including Parklane Plowden's analysis of Godfrey v NatWest Market Plc and subsequent EAT guidance, is whether the employer could reasonably have been expected to know that the individual had a mental or physical impairment with a substantial and long-term adverse effect on day-to-day activities.
In practice, tribunals will examine:
This last point is pivotal. The Khorram case made explicit that neurodiversity training for managers and teams is itself a reasonable adjustment. The absence of that training creates both a practical gap (managers who cannot identify or support neurodivergent employees) and a legal one (an employer less able to demonstrate it acted reasonably).
On top of this, it also creates a psychological safety gap for employees. If their managers are not trained in supporting and understanding neurodiversity, then why should their teams feel comfortable enough to disclose and speak to them about it?
The financial exposure from constructive knowledge failures is substantial and structurally difficult to contain.
Compensation for disability discrimination in employment tribunals is uncapped.
In 2021, a single claimant was awarded over £2.5 million in a disability discrimination case that included failure to make reasonable adjustments. The Khorram case produced an award of over £24,200, and that was a case where the tribunal found the claimant would probably not have passed her probation even with full support. In cases where the discrimination is found to be more directly causative of loss, awards are considerably higher.
Beyond direct financial liability, tribunal proceedings generate significant associated costs: legal fees, management time, HR resource, and occupational health expenditure that should have been deployed preventively.
The reputational dimension is equally significant for large organisations. Tribunal judgments are public.
National Neurodiversity Training delivers legally grounded, evidence-based training programmes designed specifically to address the constructive knowledge gap in large organisations.
Our programmes equip people managers with the knowledge and confidence to recognise neurodivergent presentations, respond appropriately, and take the reasonable steps to empower your people and your business.
If your organisation does not yet have systematic neurodiversity training in place for its management population, the question is not whether a claim is possible. It is whether you are prepared for one when it arrives.
Contact National Neurodiversity Training today to discuss a training programme tailored to your organisation's scale, business needs, and legal exposure.
