HCR Law Events

24 July 2023

‘Hidden’ disabilities – what employers need to know

Not everyone who has a disability wishes to advertise the fact – and some people may not even know they have a disability. Employers are sometimes surprised by the level of support that they are legally required to provide to disabled employees. 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.

What is the definition of 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, and 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. These activities include reading, writing and social activity. The impact from this disability 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 and pyromania, are excluded.

Disabilities can be obvious, such as a mobility impairment, but they may also 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 the definition of disability 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 can be difficult. 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.

The duty does not arise if the employer doesn’t know that the employee is disabled, although the employee may argue that the employer should have known. If this is the case, the employer has to be able to show that they could not reasonably have known that the employee was disabled. This can open employers up 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:

How can an employer find out if an employee has a disability?

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.

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.

It is also important to note that employers can still be liable for disability discrimination or a failure to make reasonable adjustments, even if the employee doesn’t inform them of the disability. The employer will be deemed to have known about the disability if reasonable enquiries led to the employer discovering that the employee was disabled. In short, employers should look out for signs of a potential disability and act on them.

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 work extra hours at home and gets a family member to check their writing.

In short, it is vitally important for employers to be aware of their responsibilities around employees’ disabilities – whether a disability has been stated by the employee or otherwise.

Share this article on social media

About the Author
Omer Simjee, Partner

view my profile email me

Want news direct to you?

sign up

In-House with You

show me more

Got a question?

Send us an email

Newsletter HCR featured image

Stay up to date

with our recent news