Hiding in plain sight

In the Marvel film, Guardians Of The Galaxy, the loveable but exasperating character Drax Destroyer takes everything literally. He doesn’t ‘get’ jokes or metaphors, so when Rocket Raccoon refers to metaphors that “are gonna go over his head”, Drax responds: “Nothing goes over my head. My reflexes are too fast. I will catch it.”  And when Star-Lord calls Drax a “walking thesaurus”, he retorts: “Do not ever call me a thesaurus.” Many on the austistic spectrum were delighted with Drax’s character because they related to him.

“I say to my autistic son, he’s a bit like a superhero; he’s got some superpowers because he can do stuff that quite frankly other people can’t do. He’s got skills and abilities that other people do not have.”

This ‘superhero’s’ father, Luke Harrison, is a partner at Debenhams Ottaway; mildly dyslexic and reckons he’s probably somewhere on the autism spectrum. Unlike the film industry, the legal profession is perpetually behind the curve, seemingly oblivious to a significant group within its workforce – the neurodiverse. 

Harrison is hesitant in calling autism a ‘disability’ but for some, it clearly is.  Of course, we all know a disability when we see one: the crutches, the wheelchair and the hearing aids are a dead giveaway. But do we really think we can recognise any disability or impairment when it’s in front of us?  

The reality is far off, in fact it’s arguably more likely that you won’t detect someone’s disability when you first meet. You won’t, for instance, ‘see’ someone’s brain tumour, their chronic fatigue, the anxiety disorder, the cancer or the straining to hear.

Nor will you ‘see’ neurodivergent conditions like autism, dyslexia and attention deficit disorder. This invisibility can be both a blessing and a curse, affording the individual the privilege or the challenge (depending on the circumstances) of being able to choose whether to divulge their impairment. But it means it’s effectively an invisible problem, hiding in plain sight. “Neurodiversity”, says Harrison, “is the last frontier of diversity that needs to be breached.”

What is neurodiversity?

Neurodiversity is effectively different wiring in the brain. Most people are neurotypical, ie their brain functions and processes information as society expects. If you want a formal definition, the Advisory, Conciliation and Arbitration Service (ACAS) describes neurodiversity as “the different ways the brain can work and interpret information”.

It is thought 1 per cent of the population is on the autism spectrum; and up to 20 per cent of the population have dyslexia, a condition often accompanied by dyscalculia and similar traits.

The nature and effects of neurodivergence are subjective, for example, the effects of autism may differ from one individual to another. So unlike most of your typical physical manifestations of disability, neurodiversity is not a binary issue.

To muddy the waters, some neurodiverse individuals are classed as disabled, but not all – a critical fact firms should appreciate. This means your firm may have a solicitor with autism who is entitled to (and requires) special adjustments under the Equality Act, while another is not. There is also the fact that, as Harrison says, “there are a lot of undiagnosed people on that spectrum”.

“I think there is a lot of stigma as well”, he adds, “where people don’t like to say to boss.es, ‘I am on the spectrum and this is why my behaviour is like it is or why I don’t like doing the things that you’re asking me to do; I don’t like to go to the client networking events, and stuff like that, find some other way that I can contribute. This is why I don’t want to take the lead in that meeting, but I’m quite happy to do all the work behind the scenes.”

Evidence

It’s troubling that there’s little awareness and understanding of neurodiversity issues in the legal profession. The recently published report following the Legally Disabled? Project, which investigated the experiences of disabled lawyers in the workplace, revealed significant concerns.  

Out of the 60 per cent of solicitors and paralegals surveyed who reported experiencing ill-treatment in the workplace, 80 per cent felt it was related to their disability. In the context of neurodiversity, the research revealed 59 per cent of respondent lawyers have an invisible impairment; and concerningly, “greater than 90 per cent of disabled legal professionals have invisible impairments that may not be known to employers or colleagues unless individuals choose to disclose”.

The report states: “Without disclosing, individuals may not be able to access support or reasonable adjustments and will be carrying the strain of ‘self-accommodating’ and concealing”. Though many of these weren’t neurodivergent impairments the researchers talked to a “sub-group of interviewees” – legal professionals who revealed they were on the autistic spectrum.

Those with autism reported being “valued for the detail they could bring to complex tasks” but were substantially disadvantaged when it came to face-to-face client interactions and social networking.

One survey respondent commented that “we autistics haven’t got good people skills… we just don’t do small talk” and could not read situations. Also, he “worried about how his behaviour would be interpreted and realised that he was misinterpreted, as he feared”.

Dyslexic respondents referred to different ways of “thinking and doing”, such as the solicitor who was praised for the way she worked – recording everything in spreadsheets and prioritising issues in different colours, something the team could adopt to help them manage their workload.

Having both autism and dyslexia poses a greater challenge but, conversely, offers enhanced ways of working. Take the solicitor who mentioned picking up on the detail in documents others missed – because he looks at things at a different angle and finds solutions others won’t be able to. But he lacks confidence and finds face-to-face interactions difficult and stressful.

The potential psychological impact of hidden impairments for neurodivergent lawyers should not be underestimated. There are autistic lawyers, for example, who conceal their condition and become ‘someone else’ between leaving home and arriving at work, in order to conform to the lawyer image and to

Without disclosing individuals may not be able to access support or reasonable adjustments and will be carrying the strain of ‘self-accommodating’ and concealing – Legally disabled? report be accepted.

This leads to anxiety and depression and is mentally exhausting. One successful partner with dyslexia admitted to researchers that “the impact on my mental health is colossal… It’s the difficulties I have in absorbing written information that I find very, very stressful too.”

Adjustments

Jonathan Andrews is autistic and an associate at Reid Smith, where he feels “recognised and respected” for his talents. He describes how his autism means he experiences things differently to non-autistic people and sees things in different ways.

“This can certainly bring challenges, but in a work context, these can often be dealt with via adjustments, eg low-occupancy rooms for people with sensory sensitivity – which often don’t cost much.” But how can employers determine if a neurodivergent individual is disabled for the purposes of equality legislation?

Tiggy Clifford is a partner at Torque Law, a firm that has been campaigning to raise neurodiversity awareness. She comments: “As with so many conditions, the variation in severity can mean this is a grey area.

“However, lawyers and law firm managers aren’t expected to have particular expertise in this area, so my advice would always be to seek out specialist help, both on the issue of whether the condition is a disability for Equality Act purposes, but also on workplace audits and suggested adaptations for neurodivergent staff.”

She also reminds firms that “whether or not the employee’s condition amounts to a disability, they are still obliged to treat employees fairly and reasonably”.

Challenges and benefits

The profession also needs to recognise the unique benefits brought to the table by neurodivergent lawyers. Individuals on the autism spectrum typically possess high levels of accuracy, attention to detail and a good memory for figures.

Andrews comments: “The benefits autism can bring can be significant – for example, I can throw myself into my work because it aligns with the special interests I have as a result of autism; and autistic employees tend to be more loyal, as well as being able to contribute different ideas to meetings/discussions due to seeing things in different ways.”

But to tap into that potential, he says organisations need to ensure a supportive culture and workplace is in place.

He adds that autism has its challenges, particularly in a fast-paced, high-stakes environment like City law, where there’s always “the potential for misunderstandings and communication being not as great as it could be for a number of reasons”.

Andrews says: “Clear communication as to when work needs to be done by and how, and what to prioritise, is probably the best ‘soft adjustment’ that can be made for many with autism.”

Typical challenges for those with autism also include issues around understanding the feelings of other people, meeting new people and adapting to change. And one advantage is ‘it takes one to know one”.

Harrison comments: “When I come across other people, like fellow lawyers and clients – I’ve developed the ability to spot others who I think are on the spectrum, and then using that understanding to understand their behaviours and ways of operating and to try and then accommodate those in how I interact with them.”

He wonders about the number of people in the profession who he thinks “obviously are undiagnosed and on the spectrum.” He observes: “You often see people being given labels as a difficult person, or as geeky and not very good with the clients, or somebody who isn’t politically correct, or is too direct. “But when you understand the neurological reasons for that, you can get people to play to their skills.”

He adds: “There are a lot of people like that in the profession and, as a litigator, I actually see it among clients quite a lot because people on the spectrum have a huge sense of justice, of what is right and what is wrong.”

Few lawyers, he comments, have the skills to handle difficult clients; those who get anxious in relation to litigation and behave in a difficult way, and they think they’re just difficult. They don’t appreciate there’s a reason for it grounded in neurodiversity.

There is also the issue of other people who are on the spectrum with whom you interact. “It may be barristers who are difficult when dealing with them, that you’re instructing”, he suggests.

“You might say, well, that barrister is really difficult in the way they operate, we shouldn’t deal with them again; or you may think, actually, why are they difficult? Is it because we’re sending them lots of emails with lots attachments which people on the spectrum find overwhelming?” So with such a barrister, he advises reverting to “the old-fashioned paper brief and pink ribbon in a lever arch file”.

Then there’s the clients, the ones who are difficult. Harrison says in every litigation practice, there are clients who are difficult. “[They] get into more litigation, more disputes”, he says, “so you will have more of those sorts of demanding, difficult clients… and sometimes their irrational behaviours and irrational expectations may be around being on the spectrum.”

Issues can then arise in managing it. Harrison says: “I can communicate [the best route] in an email. It takes me five minutes. If I phone the client, they’re a talker and they’ll spend 45 minutes on the phone, and then they’ll complain about the cost.”

Raising awareness

“It is clear”, says Andrews, “that neurodivergent individuals still face barriers both in getting into the profession, and being fairly promoted within it, often due to employers associating this with inability rather than a different way of looking at things”.

A keen advocate for autism acceptance, he’s passionate about increasing awareness and, most crucially, visibility of autism in the legal profession and demonstrating to aspiring autistic lawyers that they can enter the profession. Andrews points out that he saw no “openly autistic role models” when he was looking to enter the profession.

He works with external initiatives including the Law Society’s Equality Committee and Reed Smith’s award-winning LEADRS network, a network/task force he says has “greatly increased the number of neurodivergent and autistic trainees” – with many more applicants now feeling comfortable about being open about neurodiversity.

Neurodiversity training and awareness is important for all businesses, says Clifford, but adds that if the legal profession “really embraces awareness of neurodiversity it can ensure that it effectively communicates with the breadth of its client base”.

Simple adjustments for autism include ensuring a structured working environment and routine, and taking care with the language used, such as statements which could be taken literally – like Drax the Destroyer.

She comments: “For the legal professionals themselves, a recognition of the different skill sets that neurodiversity can bring to solving legal problems could go a huge way to providing creative and effective outcomes for clients.”  

Even small adjustments could “massively improve the effectiveness of a neurodivergent employee and their wider teams”, says Clifford. “It can be as simple as agreeing effective methods of communication (emails to confirm the outputs from a meeting, for example) or setting out the parameters for the unwritten office rules (who makes the tea, whether you’re supposed to bring in cakes on your birthday) but it can also mean that a neurodiverse lawyer with particular traits for data review, attention to detail, and so on can be extremely effectively utilised on some aspects of client work.”

Harrison would like to see more neurodiversity training. But such training is scant or non-existent, which sends the message that neurodiversity is not an issue for the profession thus rendering neurodivergency invisible. As Harrison says: “If you were to speak to any law firm and say, tell me what the diversity issues are in your law firm, they’ll talk about sexual equality, sexual orientation diversity, transgender, racial equality. But nobody will say neurodiversity.”

Could a neurodiversity equality policy in the workplace help? “Yes”, says Harrison, “such a policy could require training. Secondly, it should explain that if people believe they’ve got diagnosed or undiagnosed neurodiversity issues, they should bring them to the attention of their employers so that they could be given such support as they require. “Thirdly, it should encourage neurodiversity in relation to the way in which you deal with service providers; and fourthly, in the way in which you deal or handle clients.”

Jane Burton chairs the Law Society’s Lawyers with Disabilities Division (LDD). She says the LDD “rarely do events that focus on just one particular disability as we want to be inclusive to all disabilities”. But they did hold a “specific workshop run by exceptional individuals, which was very well attended and which we had positive feedback on from attendees.

We had another event specifically on invisible disabilities, where three committee members who were respectively visually impaired, hearing impaired and on the autistic spectrum spoke about their personal experiences (plus a speaker from Macmillan speaking about cancer and support available).”

The profession has a long way to go. Clifford warns that without change, the risks are loss of talent to the profession, lack of engagement and productivity from the lawyers involved and difficulties in the firm meeting its staff wellbeing commitments. But she adds: “The gains from a relatively small investment of time and cost into raising awareness and providing training can be significant.”

Nicola Laver is editor of Solicitors Journal and a former solicitor

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