What employers need to know about hidden disabilities

Have you ever spotted someone wearing a lanyard with a sunflower as a means of indicating that they have a non-visible disability (also known as a hidden or invisible disability)? But not everyone wishes to advertise their disability, and some people may not know that they have one.

‘Employers are sometimes surprised by the level of support that they are legally required to provide to disabled employees,’ according to Kalpesh Nakeshree, Head of Employment Law with Ware & Kay. ‘What can come as an even greater surprise is that those legal obligations may arise even if the employee has not told their employer about the disability.’

Kalpesh looks at hidden disabilities and debunks some common myths about what employers need to know to trigger their responsibilities under the Equality Act 2010.

What is a disability?

The Equality Act 2010 has its own definition of disability. Whether or not someone is entitled to disability benefits or a blue badge is not conclusive. A disability can be physical or mental. It does not have to be a specific medical condition. A person is disabled if they have an impairment that has a substantial, long-term adverse impact on day-to-day activities. Day-to-day activities include reading and writing and social activity. The impact must have lasted for 12 months or be likely to last for at least 12 months.

The scope of disabilities under the Equality Act is wide. Specific conditions such as cancer are automatically a disability, even if it has not yet had an adverse impact on the individual. A few conditions, such as certain addictions, exhibitionism, or a tendency to start fires, are excluded.

Disabilities can be obvious, such as a mobility impairment or they may be less visible or only evident in certain circumstances. These are sometimes referred to as ‘hidden disabilities’ and can include asthma, attention deficit hyperactivity disorder, autism, coeliac disease, depression, endometriosis, epilepsy, long covid, and narcolepsy.

Why does it matter?

Employees with a disability are protected under the Equality Act. This protects an employee from all forms of discrimination. Most employers recognise that equality does not always mean treating everyone the same. This principle is enshrined in the Equality Act, which creates a duty on employers to make reasonable adjustments for disabled employees.

Complying with this duty is no easy task. Employers may need to be open to doing things differently and to obtain input from an occupational health specialist or other expert. They may need to have constructive conversations with an employee on sensitive health issues. Ultimately it is for the employer to weigh up the different factors to determine what steps are reasonable. We can help you with this balancing act.    

The duty does not arise if the employer does not know that the employee is disabled, although the employee may argue that the employer should have known. If so, the employer has to be able to show that they could not reasonably have known that the employee was disabled. This is where employers can be vulnerable to a successful tribunal claim, as they must have done all that can be reasonably expected to find out if the employee has a disability. There are a number of myths surrounding this:

Myth #1 – we cannot ask employees about their health

Although there are restrictions on making pre-employment enquiries about an employee’s health, employers may ask questions for limited purposes, such as making reasonable adjustments. At other stages of the employment relationship, employers can ask questions about health, if relevant. This needs to be done sensitively and the information should be handled carefully. In particular, the information should not be shared any wider than necessary. We can advise you on the data protection requirements when handling information about your employees’ health.

Myth #2 – the employee has to declare their disability

There is no legal requirement on an employee to notify their employer of their disability. Employees may not even know that they would be considered disabled under the Equality Act or they may never have been diagnosed. 

Myth #3 – an employer is not liable if the employee does not tell them

Employers can still be liable for disability discrimination or a failure to make reasonable adjustments, even if the employee does not inform them of the disability. The employer will be deemed to have known about the disability if reasonable enquiries would have led to the employer discovering that the employee was disabled. In short, employers should look out for clues and act on them.

Myth #4 – the employee generally seems fine so they cannot be disabled

In working out if an employee’s condition has a substantial, adverse, long-term impact, the employer has to ignore the effect of anything that might alleviate the impact. This means discounting medication, treatment and coping mechanisms. For example, a dyslexic employee may seem to cope with report writing but in fact works extra hours at home and gets a family member to check their writing.

How we can help

We can help you stay on the right side of the law and to support your disabled employees. For further information, please contact Kalpesh Nakeshree in the employment team on York 01904 716000, Wetherby 01937 5823210 or Malton 01653 692247 or email kalpesh.nakeshree@warekay.co.uk.