The Equality Act 2010 states that a person is ‘disabled’ if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out daily activities. ‘Hidden disabilities’ can fall into this category.

What are hidden disabilities?

A hidden disability may not be immediately obvious or have any physical signs. Examples include:

• mental health issues
• learning difficulties such as:
• dyslexia
• dyspraxia
• ADHD
• autism
• Asperger’s syndrome
• speech, visual or hearing impairments.

Hidden disabilities may present themselves as issues with communication (verbal and non-verbal), understanding instructions, processing speeds and interpretation of social situations. Certain debilitating physical conditions are also included, such as:

• asthma
• lung conditions
• chronic illnesses, such as:
• renal failure
• diabetes
• sleep disorders.

An employee does not need a medical certificate to prove they have a disability.

For the purposes of protection from discrimination, whether a particular individual has a hidden disability will depend on the effects of the impairment and their severity, not necessarily what the disability is.

Who has protection from discrimination for hidden disabilities?

Any existing employee, job applicant, apprentice or contract / agency worker has protection. There is no minimum qualifying service or hours required before someone can make a claim.

Certain conditions are excluded from protection. These include hay fever, some anti-social personality disorders (tendency to set fire, or towards physical or sexual abuse) and most addictions to alcohol, nicotine, or other substances.

What does discrimination in the workplace look like?

Discrimination for a hidden disability can take many forms and can occur at all stages of employment: from recruitment and training to pay, terms and conditions, and dismissal.

The discrimination could be direct (i.e. where someone with a disability is treated less favourably than others) or indirect.

Indirect discrimination occurs when an aspect of the workplace puts the person with the disability at a disadvantage.

Discrimination can also take the form of harassment or victimisation.

Examples of how hidden disabilities may lead to discriminatory behaviour

Discrimination can take many forms. For example, if someone has a mental illness or learning disability which results in lower overall output when compared to other staff, the employer would likely be discriminating against them if they chose to take disciplinary action on the grounds of low productivity.

Similarly, the choice of an employer to take disciplinary action against a staff member with higher rates of sickness absence could potentially be discriminatory if the absences were the result of a hidden disability.

What can employers do to ensure they are not being discriminatory?

Employers should bear in mind that an employee with a hidden disability may be reluctant to speak up about it. They may also have developed coping strategies to minimise the impact. It could also be the case that they are not aware how severely it affects them.

Employers should exercise sensitivity and have good policies and practices in place. However, every workplace, employee and situation will differ – what is right for one organisation may not be right for another.

It is also important to remember that an employer will not have acted in a discriminatory way unless they knew, or ought reasonably to have known, that the employee has a disability.

Equality policies and training

Employers should make sure they have an up-to-date equality policy, which is well known to everyone. It should include all aspects of employment: from recruitment and record keeping to disciplinary and complaints procedures.

An effective equality policy should be reinforced with regular staff training that includes managers in the sessions.

Making a reasonable adjustment

In many cases, employers will need to consider whether they must make a reasonable adjustment to the workplace, particularly if:

• they know, or ought to know, an employee or job applicant has a disability.
• an employee or job applicant with a disability asks for adjustments.
• an employee with a disability is having difficulty with any part of their job.
• an employee’s absence record, sickness record, or delay in returning to work, is due to – or linked with – their disability.

For more information on making reasonable adjustments in the workplace, our knowledge article dedicated to the topic is a useful resource.

Hidden disabilities and legal responsibilities

Discrimination in respect of hidden disabilities can be a very complex area, especially as the circumstances that may give rise to a claim are not always clear cut.

If you are concerned about an employee who you think may require an adjustment to the workplace, or if you are an employee who believes you have been discriminated against because of a hidden disability, our team of experienced employment solicitors will be able to provide clear and accurate advice. Get in touch today.