December’s Employment Law Digest – Disability Awareness: “Hidden” Disabilities
14th December, 2022
Equality, diversity and inclusion is a key focus of many employers and the fact that many organisations are striving to be more diverse and inclusive is a very positive sign for both society and employers.
Diverse and inclusive workplaces are usually an important component of successful and highly productive organisations. However, if an employer wants to succeed in creating a fully inclusive, positive and safe working environment it needs to recognise that not all disabilities are easily identifiable.
Approximately 1 in 7 people in the world live with a disability but many of these people have a non-visible or “hidden” condition. These hidden conditions can be physical, mental, visual, auditory or neurological and employers need to be aware of the barriers in their organisation which may be preventing those with hidden disabilities from finding work or progressing in their chosen career.
Some examples of “hidden” disabilities that may be classed as disabilities under the Equality Act 2010 are employees living with autism, Attention Deficit Hyperactivity Disorder (ADHD), obsessive compulsive disorder (OCD), anxiety, depression, epilepsy, endometriosis, chronic fatigue syndrome and fibromyalgia.
Earlier this autumn, we were reminded of the importance of being aware of hidden disabilities when this headline hit the news:
Blind woman kicked out of hotel at night after being accused of having a “fake” guide dog.
Reportedly, employees at the hotel did not believe the woman’s dog was a guide dog and allegedly commented that the woman didn’t look blind. At the time of writing, the hotel is investigating this incident and no liability has been admitted.
Sadly it is still the case that many people assume that just because someone doesn’t “look” disabled, that they are not disabled. For employers this type of assumption is a serious mistake to make, and potentially an unlawful and discriminatory act. For example an employer may criticise an employee for avoiding eye contact and being blunt in the way they speak to colleagues, without considering that they may have an autism diagnosis. It should go without saying that someone with a “hidden” disability can face as many, if not more, barriers in the workplace as someone with a more obvious or visible disability.
An employee who recently took his employer to an Employment Tribunal gave a powerful reminder of this in his witness statement. The employee who has Crohn’s disease, said:
“In between toilet trips, I am the same intelligent, kind, thoughtful, helpful and diligent employee that I always was. In between hospitalisations and periods off sick as a result of my disability, I am still the same capable, professional, colleague that I always was. I didn’t change, I didn’t become incompetent, I became incontinent and that is not the same thing at all.”
No adverse finding was in fact made against the employer in managing his performance. Still, this is a powerful statement. If you would like to know more about the details of this case, I have written up a study of the key points, and factors that employers should be aware of click here to read the full case study.
Recently, the Employment Tribunal in Scotland found that an employee’s long Covid was a disability. According to MoneyWeek, there are 407,000 more people classed as having long-term illness in the UK than there were pre-Covid and it seems that many of these will be related to long Covid, which is unlikely to be a visible disability.
Equality Act 2010
Where an employee meets the definition of disability under the Equality Act 2010, the law is designed to protect them from discrimination. Where an employer knows, or should reasonably know, of an employee’s disability, the Equality Act 2010 is potentially triggered. This means that liability can arise if there were clues that should have put the employer on enquiry of the disability.
Disability discrimination can take different forms, including: direct discrimination, discrimination because of something arising as a consequence of a disability and indirect discrimination. This can lead to an injury to feeling awards or claims for personal injury where the work or environment may exacerbate the condition.
Employers also have a positive duty to make reasonable adjustments by removing visible or invisible barriers in the workplace which puts an employee at a substantial disadvantage as compared with non-disabled employees. Employers often assume that such adjustments will be costly and complex, but often the adjustments can be straightforward and where there is a cost involved the employee may be able to get a grant from the government’s Access to Work scheme.
The laws referred to above can apply even if the individual does not consider themselves to be “disabled”. Some employees who are neurodivergent may not initially consider themselves to be disabled, but whether someone is disabled at the relevant time is an objective test and therefore that initial view is not determinative if they later issue a claim of disability discrimination.
Many employees with hidden disabilities may adopt coping strategies and techniques in their working lives but what can and should their employer be doing to support employees with hidden disabilities? Next month, my colleague, Caroline Shafar, Partner, will be holding a webinar on neurodiversity in the workplace and how to promote and encourage inclusivity.
Employees with more visible disabilities can be challenged by barriers that are more visible in the workplace – such as inaccessible office space. But the workplace can be more difficult for people with a hidden disability, as until you recognise the disability you can’t identify and remove the barriers.
When considering the barriers faced by neurodiverse employees the methods of communication and the language used in your organisation is important. By developing a deeper understanding about your employees’ communication and learning styles and abilities you will be more inclusive and achieve greater engagement. Employers should consider if the language used could be difficult for a neurodiverse person to understand and whether it could it be simplified, which would make it simpler for everyone to understand.
Employers need to recognise that you can’t see all disabilities and therefore you need to consider what barriers exist in your workplace that may be preventing individuals from obtaining work with you and progressing in your organisation. Failure to recognise and act on this will prevent you from creating a fully inclusive and diverse workplace and will expose the organisation to the risk of disability discrimination claims.
Should you have any questions about this topic, or if you would like to discuss another matter, please get in touch with one of our expert Employment Solicitors.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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