Silent struggles: recognising and supporting hidden disabilities in the UK workplace

Employers are increasing attuned to the impact of disability in the workplace and the measures that can be taken to create an inclusive and supportive environment for all employees. While visible disabilities are often supported, there are many "hidden disabilities" that go unnoticed and the link between these challenges and performance and conduct issues is easily missed.

Employees may be reluctant to divulge hidden disabilities or be unaware that they have a disability for the purposes of the Equality Act 2010. Whatever the reason for their challenges remaining unrecognised, the impact can be significant. It can create legal risks and damage both to the employment relationship and to the employee's own wellbeing.

What are hidden disabilities?

The term hidden disabilities encompasses a broad range of conditions that are not readily apparent to employers. Examples include:

• Mental health disorders, such as anxiety and depression.
• Neurodivergence, for example ASD (autism spectrum disorder), ADHD (attention deficit hyperactivity disorder), dyslexia, dyspraxia or dyscalculia.
• Chronic illnesses and pain conditions, such as fibromyalgia, arthritis or endometriosis.
• Sensory processing disorders.
• Eating disorders.
• Autoimmune disorders.

It is also important to remember that your staff may be supporting a dependant with a disability and, in this way, be suffering an unseen disability-related challenge impacting on their own physical and mental wellbeing. Discrimination on the grounds of association with a disabled person is also unlawful under the Equality Act.

The impact of hidden disabilities

Hidden disabilities can manifest in ways that can be mistakenly dealt with as a performance or conduct issues by an employer, particularly where the employer, manager or the employee themselves are not aware of how an underlying condition is affecting the employee's ability to carry out their duties and work with their colleagues effectively.

This lack of understanding often leads to the employee being treated unfairly and missing out on the support and adjustments that would enable them to work to their full potential.

Examples of how a hidden disability can have an impact on performance or behaviour in a way that is not obviously connected include:

• A neurodivergent employee with ADHD might display poor timekeeping and a lack of attention to detail, while excelling at other aspects of their role – this might be construed as lack of organisation and carelessness in their work.
• An employee with a condition causing chronic pain may behave aggressively, or lose their temper with a colleague – this might be viewed as misconduct, but result from the stress of managing their pain effectively.
• Sensory difficulties, for example being overstimulated by lighting, noise, smells or crowds might lead an employee to be irritable or withdrawn – this might be perceived as poor behaviour or lack of effort.

Risk of discrimination

Where performance or misconduct proceedings are commenced with an employee, but the issues to be addressed have arisen because of something which arises in consequence of the employee's disability (whether hidden or not), this can be discriminatory – there is a connection between the "something" that results in performance/conduct measures and the disability.

The Employment Tribunal considered the case of an employee who was dismissed for gross misconduct following an aggressive outburst towards another employee. His behaviour was significantly influenced by his insulin-dependent diabetes and his blood sugar readings were outside the normal range in the period leading to the outburst, which would have an impact on his emotional regulation. The employee was therefore dismissed because of something arising from his disability: there was a link between the outburst and his condition.

Given the complex and unexpected ways hidden disabilities can affect performance and conduct, it is important for employers and managers to think carefully about whether an underlying disability might be playing a part in the matter at hand. Uncharacteristic behaviour and lapses in judgement should both provoke further consideration.

Another case considered by the Employment Appeal Tribunal (EAT) emphasises the challenges raised by hidden disabilities for employers. A refusal to participate in particular activities at work may look like defiance or an unreasonable request to drop a particular duty; but where that need arises from a disability, an employer should consider whether removing a particular aspect of an employee's duties would be a reasonable adjustment under the Equality Act.

In this case, the employee's sickness absence for anxiety had been triggered by the employer requiring her, as part of her duties, as and when necessary, to attend court. She had previously been traumatised by her experience during a court appearance in the course of her work, and being told of this requirement caused a severe anxiety reaction. The employer did not remove the requirement to attend court and  maintained that this was an essential element of the employee's duties and she was ultimately dismissed under the managing attendance procedure.

The EAT held that the employee's anxiety at the prospect of being required to attend at court, if or when she returned to work, meant that she was not fit to return to her job at all unless the employer removed that requirement. In light of these facts, this had a substantial adverse and long-term effect on her ability to carry out normal day-to-day activities and therefore she was a disabled person under the Act.

In practice, employers need to carefully consider any circumstances where an employee has developed a particular anxiety related to part of their role. This could be dealing with difficult clients, customers or members of the public, giving presentations, or working with a particular manager.

Neurodivergent employees may have specific anxieties related to a particular aspect of a role which should be accommodated in reasonable adjustments being made.

Where an employer is able to reasonably make a change for any employee experiencing a specific anxiety relating to part of their role, but gives no consideration to this, or dismisses an employee's concerns, this could give rise to a successful discrimination claim or constructive dismissal.

What can employers do to address hidden disabilities?

There are some practical steps employers can take to create an environment where employees feel more confident to share challenges and bring hidden disabilities into the open.

Providing training and raising awareness is a key step for equipping managers and colleagues to recognise any warning signs and respond appropriately and supportively.

Inclusive policies with clear commitments to diversity and reasonable adjustments will also encourage good communication: sickness absence, flexible working and wellbeing policies should all be reviewed.

Leadership support is important and participation in events by leadership sends a positive message that diversity is celebrate and supported in the organisation. Employee support groups can also give employees the confidence to share their challenges and are a valuable source of support and can role model good communication and practical solutions.

Osborne Clarke comment

An employer cannot be liable for discrimination arising from disability under the Equality Act unless it knew (or should have known) about the employee's disability. It is not, however, necessary for an employer to be aware that the "something" (such as behaviour or performance) arises in consequence of the employee's disability for it to be liable, if it treats the employee unfavourably because of that "something".

It is therefore essential for employers to consider the impact of hidden disabilities in their workplace and take steps to promote awareness, implement policies and encourage open communication regarding the impact of any hidden challenges on issues in the workplace.