Most employers are familiar with the protection provided to disabled employees in the workplace under the Equality Act. However, there is still quite a lot of misunderstanding around what constitutes a disability and also how different conditions affect different employees individually. This has created the issue of hidden disabilities.
Employers will still often comment that as someone looks normal or isn’t obviously affected by their condition to an outsider that they don’t believe they are disabled. Many employees will equally not consider themselves to be disabled, as they are able to manage their condition effectively, however they would in fact be caught by the definition of a disability under the Equality Act.
Obligations under the Equality Act to disabled employees can therefore be missed or overlooked as a result. These hidden disabilities are becoming more and more common and its important employers are aware of them and educate their managers and staff about them too.
Which disabilities are covered by the Equality Act?
For an employee to be disabled under the Equality Act they must show they meet the legal test, which is:
- They have a physical or mental impairment…
- And this has a substantial adverse effect on their ability to carry out normal day to day activities…
- And that effect is long term, which means it has lasted or is likely to last for 12 months or more.
What employers often overlook, when considering the day-to-day effect of an impairment, is the impact of any treatment. For example, if an employee suffers from depression or diabetes but manages this well with regular medication, the legal test would look at the impact on the employee day to day if they were not taking their medication.
It is therefore key that employees seek medical advice where they believe an employee’s health is having an impact on their work, however small that impact may seem, so that they can look at the whole picture.
The Equality Act 2010 also specifically lists three conditions which are automatically classed as disabilities from the day of diagnosis and which are not subject to the legal test set out above. These are multiple sclerosis, cancer, and HIV infection. An individual suffering from these conditions should be automatically treated as disabled under the Equality Act 2010 and receive the protection it offers.
What are common hidden disabilities?
‘Hidden disabilities’ is a term commonly used for conditions which you would not have any clue exist when simply looking at an employee. These have particularly come to light during the Covid pandemic, for example, when an employee may be particularly vulnerable to infection due to a lung condition.
They include mental health conditions such as anxiety, depression and post-traumatic stress disorder (PTSD) and learning difficulties such as dyslexia, dyspraxia and ADHD. They also include conditions which may have a varying effect, such as endometriosis, multiple sclerosis (MS) and fibromyalgia – conditions which may be manageable for an employee one day, but have a significant debilitating effect the next. Also included are chronic illnesses such as renal failure and diabetes.
The three medical conditions listed in the previous section which are treated as a disability without the need to consider the legal test, i.e. MS, cancer and HIV infection, are also often hidden disabilities when the effects of the illness are not visible.
What is the risk for employers of hidden disabilities?
Employers have an obligation to make reasonable adjustments where an employee is placed at a disadvantage at work due to a disability. Employers can also be liable for indirect discrimination, where a requirement that they apply to everyone places an employee at a particular disadvantage due to a disability and the employer cannot justify this requirement. For example, a rule that employees will be given a written warning if their attendance drops below a certain level could disadvantage an employee who is regularly off sick due to their endometriosis.
The Equality Act protects both existing employees and workers and job applicants. Claims for disability discrimination can be substantial when things go wrong.
What should employers do to manage hidden disabilities?
Employers should train managers to ensure they consider the reasons behind any issue at work. For example, when considering a performance concern, managers should ensure that they explore why the employee’s performance has dipped. If this is linked to ill health, the employer should consider whether the employee is disabled and what adjustments should be made.
Employers should bear in mind that an employee may be reluctant to talk about their health. They should work to create an open environment where employees are confident that their health will be discussed sensitively and considerately. Mental health first aiders can be particularly useful to promote this openness in relation to mental health conditions.
All employers should have an up-to-date equality and diversity policy which sets out their commitment to equality and ensures all staff receive regular training, particularly those with management responsibility.
Employers should regularly check in with their employees through one-to-ones and carry out regular assessments of working arrangements and work stations to ensure that employees are supported to perform their best at work.
Charlotte Farrell and Tabytha Cunningham are associates at Paris Smith