Industrious Conversations: Supporting neurodivergent employees in workplace investigations

Tamara Lutvey:

Hello and welcome to Ashurst Legal Outlook and this episode in our Industrious Conversations series for 2025, bringing you insights into workplace developments in Australia from our leading employment team at Ashurst. I'm Tamara Lutvey, a partner in our employment practice based in Brisbane.

In this episode, we'll be talking about accommodating neurodiversity in workplace investigations. I'm delighted to be joined today by Mackenzie Small, a relationship manager with Australian Disability Network, which Ashurst is delighted to be a member of.

Mackenzie has over a decade of experience across the employment and disability sectors with a particular interest in neuroinclusion and strategic action planning. Currently working at Australian Disability Network as a relationship manager, Mackenzie partners with employers to remove barriers in workplaces, create inclusive and psychologically safe and accessible workplace environments, and welcome people with disability and neurodivergent people as employees, potential employees, and stakeholders.

Welcome, Mackenzie.

Mackenzie Small:

Thank you so much for having me. It's a pleasure to be here.

Tamara Lutvey:

Thank you so much again for joining us. Before I launch into my first question today, Mackenzie, I thought it might be useful just to set the scene as to why you and I are together today. We've been hearing from our clients that they're facing an increased demand for workplace investigations, and the matters being investigated are becoming more complex. One concern is how to best support people to participate in these inherently stressful and uncomfortable processes. We've been considering trauma-informed practice, and as an extension of that, we're now focusing on neurodiversity.

Could you briefly tell us what it means when we're talking about neurodiversity in this context?

Mackenzie Small:

Absolutely. Your clients are probably not alone in this journey. We work with over 460 organisations across Australia that are all similarly seeking more information and resources to understand neurodiversity in the workplace. Neuroinclusion is about welcoming all the wonderful ways in which our brains and our minds show up in the workplace. We all communicate and interpret information differently. Neuroinclusion and neurodiversity have become such buzz topics in recent years, and it's important that business and as organisations are having conversations about how to enable participation.

Tamara Lutvey:

When it comes to investigations, one of the main stages is gathering evidence, which can be done in lots of different ways. What are some key considerations from a neuroinclusion perspective when gathering information and gathering evidence? Are there particular things that we should be mindful of as investigators?

Mackenzie Small:

There's a number of important factors. When gathering information, you'll be meeting with individuals to ascertain their stories and version of events. It's important that organisations are as transparent as possible with their employees about what information they need. Supporting employees to succeed in these conversations involves being very clear about what we're actually asking of them.

This communication might include providing a brief high-level summary of the allegations or the purpose for the investigation, available psychological support such as EAP, a reminder of their rights. such as being able to bring a support person, and an estimated timeline.

One common question that we get is whether we send questions in advance and how much information is too much information. I believe in being as transparent as possible. Sharing some of those key questions in advance can be really helpful for certain employees who need extra time to process information or consider their responses. It's also important to be open to different channels and ways in which we can facilitate these conversations, whether virtually or in-person.

Tamara Lutvey:

That's fascinating. Regarding timing, if we give someone an estimated timeframe, is it important to stick to that?

Mackenzie Small:

It comes back to setting expectations. People with disability and neurodivergent folk can experience barriers in certain processes, and workplace investigations are no exception. Helping determine what steps are involved in the process so they can better identify the potential barriers and request adjustments to enable their participation.

Tamara Lutvey:

Are there practical adjustments we should consider that we might not have thought of before?

Mackenzie Small:

Many of these adjustments relate to universal design. When we design these processes for the minority, we're actually designing for the majority. A really interesting concept is the persona spectrum. For example, automated doors help people that are wheelchair users, but also parents with prams or people carrying heavy boxes. When we consider some of these principles across different personas, they can really enable participation.

For neurodivergent folk, adjustments might include offering flexibility in how investigations are conducted - whether that's virtual or an in-person meeting, or enabling someone to provide a written response if that's their preferred method of communication. It's very often the case that neurodivergent folk have a preference for written correspondence as their preferred method of communication.

If the meeting is in person, it's important to consider things like seating arrangements and room set up. Allowing an employee the option to sit by the door so they're not feeling cornered in a room when sitting across from HR or their people leader can help with psychological safety element. But also looking at the seating arrangement, so are they sitting directly opposite one another, which can be perceived as quite confrontational. It can be really helpful to have a slight angle in your seating position so as to not be directly facing someone.

It's always good to consider breaks and comfort breaks as investigations can be stressful environments for individuals. We recommend as sort of a minimum a five to 10 minute comfort break for every hour. If we are noticing that an employee is becoming distressed, offer them a break, it is their right to be able to request a break in these sessions where the agenda naturally allows for those breaks or schedule some in there.

Another great resource is fidget toys and colouring in. I'm actually using a fidget toy now. It helps me to concentrate but also regulate emotions, and it can be a really interesting tool for people to be able to utilise to help them in these processes. So keeping their hands busy whilst sharing their version of events or responding to questions.

Tamara Lutvey:

It’s about thinking differently about how we can meet our legal obligations while making people feel comfortable and safe, and getting the best evidence from them. It's more likely, I would think, to give good evidence if they feel comfortable in the environment that they're giving their account in.

What about asking questions? Is there a way we might go about asking questions or acknowledging to assist someone who might need further accommodation?

Mackenzie Small:

When it comes to asking questions, it's really important we use clear and direct language, and that we avoid idioms, sarcasm, or ambiguous phrasing. Questions should always be framed in a concrete and specific way. This can be challenging when you're starting an investigation, because you're trying to keep your questions broad and then narrowing in later on.

To give you an example, asking a person, "how did that make you feel?". This can lead to feelings of ambiguity or confusion. They may be unsure if they're being asked how they felt emotionally, physically or professionally. So instead, you might focus on asking people to describe what happened rather than how they felt. For example, "On the 24th of July, you were present during the event. Can you please describe what was said or done?" By using concrete phrasing and terminology, you will support people to better understand what's actually being asked of them.

Tamara Lutvey:

In terms of acknowledging a response, are there some tips that you would suggest for making the person feel understood?

Mackenzie Small:

It's really important that we have a degree of empathy in our communication with individuals. All employees appreciate the opportunity to be heard and understood. Simple paraphrasing, or using empathic language such as, "I hear what you're saying," or reflecting back, "That must've been really difficult," can really help to create an environment where someone feels that they're being understood. It will also validate certain emotions and thoughts they might be having.

Tamara Lutvey:

What if we don't know if someone is neurodivergent or requires an inclusive approach? How should we approach that?

Mackenzie Small:

Whether someone is neurodivergent or not is often beside the point. Knowing whether they are or not, what does that do more than just to satisfy our personal curiosity? And there are a realm of reasons as to why someone might choose not to share this information. We know that fear of discrimination is a huge barrier for people, and sharing that information may put themselves at perceivable risk or fearing that they might be held to a different standard.

In those sorts of situations, we talk about focusing on adjustments rather than the specific diagnosis. Because if you've met one person with autism, you've met one person with autism. How they experience autism is going to be vastly different between individuals and the potential support that they might require. Rather than focusing on whether a person is neurodivergent or not, think about whether there are any barriers in this process and what can we do to support them through that.

Tamara Lutvey:

Yeah, that's so helpful, Mackenzie. Another thing that I was thinking about as you were talking a bit earlier about your fidget spinner and about how having those kinds of adjustments can help you feel more comfortable and more able to focus on the topic that you're wanting to discuss.

One of the things that we often do as investigators is make assessments of people's credibility and the weight that can be given to their evidence. That can include their presentation at an interview, body language and demeanour when answering questions. For example, if someone's avoiding eye contact with the interviewer, could it mean they're being dishonest, or that there should be caution given to the weight that can be attributed to their evidence?

Listening to what you've been saying today, these types of behaviours could actually just be connected with someone's neurodiversity. How should we deal with that sensitively?

Mackenzie Small:

As someone that's watched a lot of crime shows myself, I understand that these sorts of behaviours typically indicate if a person is being deceitful or not telling the truth. The short answer is yes, it could be connected with someone who is neurodivergent. However, it's not the most reliable way of determining it. When we look at things like body language and eye contact, there's actually a range of circumstances outside of neurodiversity that also influence these behaviours. For example, cultural and social influences can impact people's body language, their demeanour, their way of speaking, such as their vocal tone. So it's important to focus on the content of what a person is saying rather than how they're saying it or what their body is supposedly telling you.

Tamara Lutvey:

Is it possible for an organisation to have a single source of truth or a catalogue to ensure that they're supporting their employees in the best possible way?

Mackenzie Small:

A lot of organisations try to get information about the types of disability that someone has. Whether it's neurodivergence, physical, sensory, et cetera. Or do we have a menu of adjustments that employees can follow or request?  It's really about coming back to that person-centred approach.

We have a guiding principle here at Australian Disability Network: everyone's experience of disability is as unique as their fingerprint. As much as organisations might want to have an ultimate source of truth or a catalogue to refer back to, this approach can actually have the opposite effect. It can lead to assumptions such as, "We've got another autistic person coming in for an interview, so here are the types of support that they're going to need" rather than actually asking the individual, "What might you require to support you during this process?" It's important to be led by the individual, rather than by assumptions based on previous experiences with autistic people.

Tamara Lutvey:

So, it's really about taking the inclusive approach and offering everybody involved whatever they need to make the process as accessible, comfortable and safe as possible.

Are there any final thoughts that you'd like to share with our listeners, Mackenzie? It's been fascinating speaking with you today.

Mackenzie Small:

Thank you so much for having me. The most important takeaway is the value of having open conversations about adjustments. Our research that we conducted just over a year ago that it takes, on average, an organisation proactively offering adjustments three times before an employee asks for adjustments.

By proactively and regularly offering adjustments throughout the process, you acknowledge that people might need support at different stages of the process. So for example, an individual might require an adjustment to review the report or the allegation at the beginning, perhaps in a more accessible or summarised format, but not actually need any adjustments to attend the interview itself. Unless you ask at each stage of the process, you're not going to know, and it will impact people's participation. It's a very easy question to ask, for example, "Does this time and date work for you for this meeting? Do you need any adjustments to participate?"

Tamara Lutvey:

So, it’s about getting into the habit of asking, and then hopefully, over time, people will feel comfortable taking up that offer.

Mackenzie Small:

Absolutely. And if they don't, they don't. Not every person with disability or neurodivergent person will request adjustments, but at least you are creating an environment where people feel safer to be able to share this information. And then also how you respond to these adjustment requests, making sure that they're implemented in a timely manner when they need to at this stage that it's required.

Tamara Lutvey:

Some of the accommodations you mentioned are really interesting, such as allowing people to provide a response in writing and that might help them feel more comfortable and able to give their best account.

One concern our clients often have is the need to complete these processes as quickly and efficiently as possible. Allowing someone to provide a written response and giving them the time to do that might cause delay. Do you have any thoughts on that?

Mackenzie Small:

Under the Disability Discrimination Act, there is fairness in people being able to request adjustments. If someone prefers to provide their response in writing, they should be given a reasonable amount of time to prepare their response. It depends on the nature of the questions being posed, and how that might look like. I think in the spirit of fairness and equity, giving someone an additional day or two to come back with their responses would be well within the realm of what's considered reasonable.

Tamara Lutvey:

That's an excellent point, Mackenzie. While we always want to complete these processes as quickly and efficiently as possible, because we're conscious of the impact on people going through these processes, if there is a delay, it's likely to be minor in the grand scheme of things. The benefit is that you get a more fulsome account from the person than if you insisted on a particular way of giving evidence, which might not be appropriate in those circumstances.

Mackenzie Small:

It's about having a fair process for everyone. Due process means allowing everyone to participate in the way that makes the best sense for them. If you're going to do something, do it right and do it well. Sometimes that means taking the additional time you need to follow a good process where everyone feels that they've been able to contribute and participate, rather than meeting a certain deadline. Certain situations can have quite a devastating impact on individuals, but I think everyone has the right to participate in due process.

Another important consideration is reinforcing to employees that no conclusions or decisions have been made until the investigation is completed. I think it's one thing for employees to come into a situation where they feel that a decision has been made or the organisation has got certain perceptions about a particular allegation. And I think when we are looking at creating that psychologically safe environment where people feel safe to share their stories and their version of events, it's coming into a process or a meeting with individuals that feel that there's no preconceived notions or ideas and that they are free to share their version of events, knowing that that'll be part of the decision that goes into play. But I think it is important to clarify that this is really part of fostering a psychologically safe where everyone feels that this is a fair process. And I think it comes back to that fairness and equity.

It would be great for organisations to be able to do more in this space. We work with over 460 organisations across the country, and if any organisation is really struggling to understand neuroinclusion or how to welcome people with disability not only as employees but potential employees, they are more than welcome to reach out to us. We are here to support, provide advice and guidance. You don't have to go through this alone. It is very complex, so being able to access a membership or our services in terms of support and guidance is always welcome.

Tamara Lutvey:

Thank you so much, Mackenzie. It's been such a pleasure speaking with you today. That was incredibly insightful, and I'm sure that our listeners will agree.

Thank you for listening to this episode of Industrious Conversations on Ashurst Legal Outlook. To hear more Ashurst podcasts and to ensure that you don't miss any future episodes in our Industrious Conversations Series, subscribe now on Apple Podcasts, Spotify, or your favourite podcast platform.

Also, please do reach out to our Employment team if you'd like to discuss this topic more. It's one that we're following closely and have been taking a keen interest in.

We hope you'll join us next time as we continue to explore key workplace developments in Australia and hear insights from other members of our leading Employment team here at Ashurst. Until then, thank you for listening and goodbye for now.