14 May 2024

The dangers of discriminating against unseen disabilities

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Tom Martin Senior Associate
Colleague consoling a stressed worker

Almost a quarter of Britons are disabled. Yet, despite 24% of the population having a disability or limiting condition, 80% of disabilities or illnesses are unseen. That equates to over 10 million people who live with a limiting condition that can’t be immediately observed by passersby.

It is illegal to exclude, mistreat, disrespect or dismiss employees suffering from unseen illnesses in the same way as visible impairments, so what are your obligations, as an employer?

What is an unseen disability?

Disabilities or illnesses which cannot be perceived are wide-ranging. These include everything from mental health conditions, such as anxiety, depression, schizophrenia, personality disorders and obsessive compulsive disorder, through to autism, Asperger’s syndrome and visual impairments or restricted vision.

Other examples include hearing loss, cognitive impairment (including dementia, traumatic brain injury, or learning disabilities), sensory difficulties and health conditions, including diabetes, chronic pain or fatigue, respiratory conditions and incontinence.

With this in mind, it is likely that the majority of employers may be unaware of the true number of people that make up their workforce who suffer from unseen disabilities. How then does this impact on those employers?

Employers are liable for unseen disability discrimination

If an employee has a disability which meets the criteria set out in the Equality Act 2010, you must make reasonable adjustments to ensure that, as far as possible, they can continue to fulfil their duties. This includes disabilities which are unseen.

In an office environment, for example, this could include increased lighting for a worker with limited sight, headphones for someone who suffers with sensory difficulties or adapted workspace for someone suffering from arthritis - to name just a few examples.

What is “reasonable” in this context will depend on the specific circumstances of the individual and the employer involved. Not all adjustments will be “reasonable” for the employer to make, even where they may assist with the individual’s condition.

Failure to go through the proper channels, explore all possible options and negotiate with the employee could result in an employer facing a tribunal with the employee in question - which could result in an uncapped award of compensation and possible reputational damage.

Employees do not need to disclose unseen disabilities

Critically, employees do not need to make you aware if they have an unseen illness or disability. They have a legal right to privacy and, while they can choose to disclose this if they wish, there are many reasons they may choose not to - such as to avoid any perceived stigma or discrimination that could arise as a result.

An employer has a legal obligation under the Equality Act 2010 to “make reasonable adjustments when they know, or could reasonably be expected to know, someone is disabled”.

An employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know that the individual has a disability. This means that an employer need only have constructive knowledge of the disability, i.e. that it had sufficient information from which to draw inferences or seek further information which would clarify whether or not the individual was disabled. Employers should be vigilant and ensure staff are trained to look for things like this.

Consider the bigger picture

If an employer notices increasing staff illness, reduced performance, longer than usual or more frequent breaks or a lack of focus among employees, they should take clear steps to understand the issue and minimise its impact, rather than leveraging punishments or penalising employees without understanding the cause.

It is important to consider every variable. An employee taking more frequent breaks may be suffering from a recently diagnosed issue, such as diabetes, in which case allowing them to keep a close eye on their blood sugar is an important adjustment to ensure they are able to remain healthy and work optimally. Similarly, if someone is absent more than usual (without notice), they may be managing a health condition that they or a member of their family is struggling with. Dismissing or punishing them in either scenario could be classified as discrimination.

The only way to avoid unfairly penalising someone with an unseen disability is simple: treat all employees with equal respect, tact and understanding. If you suspect there may be a problem, it is always preferable to open a dialogue and get to the root of the problem so that it may be overcome.

If you are unsure when to do this or would like to ensure that you are taking all the proper precautions to safeguard yourself and your company, get in touch with our expert team employment law team today.

Tom Martin, Wilkin Chapman LLP
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