Disability discrimination - be aware of the hidden disability

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Background

The Equality Act 2010 describes a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. This is a wide definition capturing a number of individuals with disabilities, which are not obvious to a casual observer.

According to the Office of National Statistics, between April and June 2017 there were around 7.1 million people of working age in the UK who were living with a disability. Of those, 3.5 million (49.2%) were in employment. According to the Papworth Trust, nearly one in five people (19%) in the UK was living with a disability in 2016.

The Equality Act 2010 requires an employer:

• Not to treat applicants or employees with disabilities less favourably than their non-disabled peers because of the disability;
• Not to treat those with disabilities unfavourably for any reason arising from the disability without objective justification;
• Not to subject those employees to indirect discrimination (without justification), harassment (because of a disability) or victimisation.
• To make reasonable adjustments to accommodate the condition so as to minimise any disadvantage caused to them by their condition.

An employer will not commit, or be liable for, an act of direct disability discrimination, unless the employer knew or ought reasonably to have known ('should' have known) that the employee was disabled within the meaning of the Equality Act. This is also true for allegations of discrimination arising from disability and a failure to make any reasonable adjustment.

The position is less clear-cut when it comes to the question of harassment; it is possible for harassment to occur where an employer perceives someone to have a certain condition, even if they do not, in fact, have the condition. In addition, an employee can consider themselves subject to harassment where they are offended by comments made about another person's disability.

In relation to indirect discrimination, there is no need of knowledge of an employee's condition for the employer to commit an act of indirect discrimination.

Many of the conditions that would cause an employee to be considered disabled within the meaning of the Equality Act can be described as hidden or invisible. Typical examples would be depression, dyslexia, epilepsy and autism as well as other chronic conditions that might cause an employee to have periods of good health and periods when they are unable to work such as ulcerative colitis, myalgic encephalomyelitis (ME), migraines and arthritis.

So what should employers do?

While it may be tempting for employers to think that avoiding any knowledge of any condition(s) is the best way to avoid liability, case law has shown that the ostrich approach does not get the desired result. The key problem with that approach is that of constructive knowledge i.e. could/should the employer have known that the employee suffers from a particular condition from the information that they have, normally in relation to absences and general day-to-day behaviour?

The Equalities and Human Right Commission has provided a statutory Code of Practice, including examples, on what should be regarded as reasonable knowledge of a condition. The code goes on to state that 'an employer must do all they can reasonably be expected to do to find out if a worker has a disability' specifically targeting the "ostrich approach". In one example, the EHRC suggests that an employer should explore the reasons for a deterioration in the performance of an otherwise good employee, including asking reasonable questions regarding their health and wellbeing.

Comment

The reasonable employer will maintain an open dialogue with their staff and will regularly monitor and reflect on employee performance. Where an employee demonstrates behaviours that are out of character (unusually snappy, lethargic, emotional etc.) or where an employee's performance deteriorates without any obvious explanation, the employer's first reaction should be to investigate the cause. Many employers would rush to take action to improve the performance without first trying to understand the underlying cause. By jumping straight to a performance improvement process they could unwittingly subject the employee to one or more forms of discrimination.

The workplace culture should encourage an open dialogue about health and wellbeing and employers should take steps to reduce stereotyping, particularly surrounding mental health conditions, so that staff are more confident to discuss any difficulties that they may be experiencing at work. Various options exist that provide staff with external help ranging from employee assistance programmes to occupational health assessments.

Employers should not be afraid to start a conversation about health and wellbeing, particularly where performance or behaviour has become a concern, although conducting such conversations in a sensitive way will be crucial to a positive outcome. An employer would be well advised to explain the concerns about the employee's behaviour before asking the employee if there are any circumstances that might be causing the problems at work. Clearly, employers should not be confrontational or seek to diagnose the employee with any particular condition. Statements such as; 'you're making lots of mistakes, are you dyslexic?' are clearly inappropriate and should be avoided, but leading the employee into an open discussion about why they might be making mistakes should provide the opportunity to identify any concerns in a safe environment and reduce the risk of unintentional discrimination.