Blog: Hidden Disabilities – the pitfalls for employers and how to avoid them

Our firm has increasingly been helping our employer clients defend disability discrimination claims in the Employment Tribunal for ‘hidden disabilities’. In this blog I discuss the risks for employers and my tips for avoiding them.  Me and my colleague Tamsin James will be expanding on this topic in our next employment law update event on May 19th.  Do come along if you can make it.

Hidden disabilities are where employees do not disclose that they had any disability at the time of the events they are complaining of.  In some cases, they had not even been diagnosed at the time with the condition they later use for their disability claim! So we refer to such cases as ‘hidden disability’ claims because of the fact that the (alleged) disability was not disclosed to the employer (at the time).

Under the Equality Act 2010, a person is classed as ‘disabled’ if they have a physical or mental impairment which has a “substantial, long-term adverse effect on their ability to carry out daily activities”.  Most mild and/or short-term medical conditions will therefore not count as a disability (e.g. the flu, a broken leg, short-term anxiety, recovering from an operation).  But any condition that does impact on basic day-to-day activities and lasts 12 months (or is likely to do so) will come within the disability definition – and sometimes this can surprise an employer.

The problem for employers

The difficulty – and growing legal risk – for employers is where they have not been told of the condition.  Either they’ve not been told about it at all or they’ve not been informed of its severity, extent and/or long-term nature.

Sometimes an employee will claim that in fact their employer did know of their condition but failed to appreciate it was a disability.  Sometimes, they will claim that their employer did not know many details of their illness but knew enough to have put the business under a duty to investigate further (e.g. ask for a medical report).

Increasingly, common ‘hidden’ disabilities are mental health issues (e.g. anxiety,  depression) or psychological problems, such as Asperger’s, autism, dyslexia and ADHD (often collectively called ‘neurodiversity’).

Deemed to know

An employer can be liable for disability discrimination if it either knew of the disability or did not directly know but ‘could reasonably have been expected to know’ from the warning signs it was aware of.   We call this having ‘constructive knowledge’ of a disability.

Either knowledge or constructive knowledge creates the risk of a potential disability discrimination claim.  Genuine and complete lack of knowledge is usually a complete defence to such a claim.

It’s worth remembering that this extends to job applicants, apprentices and contract/agency workers, as well as current employees.

Our tips for employers

Employers are expected to take ‘reasonable steps’ to find out if a worker has a disability, if they can see some warning signs.  Here are some tips that will help, based on our experience of managing such claims:

  • With every disciplinary, poor performance meeting or dismissal, ask yourself ‘could there be any mental health or neurodiversity issue here?’
  • With potential sickness warnings or dismissals, have you investigated the condition sufficiently?
  • Early intervention is a distinct advantage.  The earlier you spot a disability the better the outcomes for all
  • Familiarise yourself with the signs of neurodiversity.  The CIPD website has a very helpful paper, Neurodiversity at Work.
  • Consider taking occupational health advice (this can be confidential advice to you only, if you prefer).
  • Have good policies and practices in place – especially an up-to-date (and internally publicised) Equality policy.  Equality training is also a wise investment (we offer great Equality Diversity and Inclusion training if you need some!).
  • Consider investing in Mental Health First Aid and basic neurodiversity awareness training for all managers.

Hidden disabilities are becoming an increasing risk for employers.  We’d strongly recommend you take legal advice if you have an issue or concern.

Do you need advice about a hidden disability claim or are you concerned you may have one on the way? Please get in touch if you’d like to discuss how we can help:   / 0117 325 0526.

Luke Menzies