3 January 2023

Have you ever spotted someone wearing a lanyard with a sunflower logo 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 be disabled without knowing it themselves.

Employers are sometimes surprised by the level of support they are legally required to provide to disabled employees. What can come as an even greater surprise is that these legal obligations may still arise if the employee has not told her employer about the disability or even if the employee did not recognise herself as disabled.

In this article, we look at hidden disabilities and debunk some common myths about how much employers need to know in order for their responsibilities under the Equality Act 2010 to be triggered.

What is a disability?

The Equality Act 2010 provides 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, 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 counted as disabilities even if they have not yet had an adverse impact on the individual. A few conditions, such as certain addictions, exhibitionism, and 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 (ADHD), 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 in the same way. 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 willing to change their common practices and to obtain input from an occupational health specialist or other expert. They may need to have constructive conversations with employees about sensitive health issues. Ultimately, it is for the employer to weigh up the different factors to determine what steps are reasonable in each case. We can help you with this balancing act.

The duty does not arise if the employer does not know that the employee is disabled, but 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, since, in order to avoid the duty arising, they must have done all that can be reasonably expected to find out whether 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 more widely 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 whether 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 to stay on the right side of the law and to support your disabled employees. For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.