During the pandemic, the sunflower lanyard, indicating that the wearer has a hidden disability, came to the fore. Indeed, since the pandemic conditions such as depression and long covid, which could amount to a disability, are on the rise. It is now estimated that 80% of disabilities are “hidden” or non-visible.
What does this mean for employers?
We look at hidden disabilities, the duty imposed on employers under the Equality Act 2010 and dispel some common myths about disability.
What is a disability?
A disability is defined under the Equality Act 2010 as:
- a physical or mental impairment – the impairment has more than just a minor impact on someone’s life or how they can do certain things. This may fluctuate or change and may not happen all the time; and
- has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities – long term means that the adverse effect has lasted for 12 months or be likely to last for at least 12 months. Day-to-day activities could include getting out of bed, reading, following instructions, using a computer, communicating with other people, standing up/sitting down etc
The Equality Act protects both existing employees and workers, and job applicants, referred to collectively as “employees” for ease.
Some disabilities can be obvious, such as a mobility impairment. The impairment does not have to be a specific medical condition, although some conditions such as cancer, HIV and MS are automatically a disability, even if it has not yet had an adverse impact on the individual. Many disabilities are hidden, or only evident in certain circumstances. Hidden disabilities can include:
- asthma or lung condition;
- depression and PTSD;
- renal failure and diabetes;
- endometriosis;
- neurodiversity (e.g. ADHD, autism, dyslexia, dyspraxia); and
- symptoms relating to menopause, and potentially long covid.
Why does it matter?
Employees with a disability are protected under the Equality Act. This protects an employee from discrimination. Furthermore, the Equality Act creates a duty on the employer to make reasonable adjustments where an employee is placed at a disadvantage at work due to disability.
For example, the requirement for a dyslexic employee to complete handwritten paperwork within a limited timescale is likely to put a dyslexic employee at a substantial disadvantage compared with non-dyslexic employees. The employer is then required to take reasonable steps to avoid the disadvantage, for example, by allowing extra time to complete tasks, or providing speech-to-text software.
Whether an adjustment is reasonable or not, will depend on the specific circumstances, such as the financial cost of making the adjustment and the size of the employer.
Complying with these duties is not necessarily straightforward. Employers will need to keep an open mind, and often they will need to obtain input from an occupational health specialist or other expert, even if the effect of the impairment is seemingly small.
It is important that stereotypical assumptions are not made about the condition or its progression and so input from the employee and treating doctors is likely to be key. 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.
Knowledge of the disability
The duty to make reasonable adjustments does not arise if the employer does not know that the employee is disabled. However, the employee may argue that the employer should have known or had constructive knowledge of the disability. This is where employers can be vulnerable to a successful Employment Tribunal claim, unless they 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. Once employed, 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 have a disability 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 should ignore the effect of anything that might alleviate the adverse nature of the impairment i.e. by discounting the effect of medication, treatment and coping mechanisms/strategies. For example, a dyslexic employee may seem to cope with report writing but works extra hours at home and gets a family member to check their writing. Would they be at a disadvantage without the use of these strategies?
Practical steps
Here are some practical ideas to help reduce the risk of claims and ensure that your employees feel supported:
- Welcome and embrace diversity – create an open environment where employees are confident that their health will be discussed sensitively and considerately, by welcoming diversity and create a culture where our differences are accepted and valued. Mental health first aiders can be particularly useful to promote this openness in relation to mental health conditions.
- Ask the individual – check in with employees through one-to-ones and ask the employee what they need. Do not make assumptions. Take time to understand the employee’s situation and needs. Carry out regular assessments of working arrangements and work stations to ensure that employees are supported.
- Consult widely – regularly re-evaluate policies, practices and adjustments and consult with disabled staff to highlight any changes needed to ensure accessibility to all.
- Training – ensure all staff receive regular training, particularly those with management responsibility, so that they are aware of hidden disabilities, and equality legislation, so that they can identify potential issues early.
How we can help
We can help you support your employees, and avoid costly Employment Tribunal claims. For further information, please contact Eleanor Rogers in the Employment team on 01227 763939 or email er@furleypage.co.uk
Please note: This article is for general information only and does not constitute legal or professional advice.
