The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
An issue being brought into public view in the latter part of this decade, thanks to a healthy handful of royals and celebrities, is the existence of hidden disabilities.
Examples of these hidden disabilities include, but are not limited to, the following;
- Depression and mental illnesses
- Post-traumatic stress disorder (PTSD)
- Dyslexia and other learning disabilities
- Diabetes and epilepsy
- Autism Spectrum Disorder, attention deficit hyperactivity disorder (ADHD) and Asperger’s syndrome.
Are these conditions “disabilities”?
A “disability” under the Equality Act 2010 (EqA 2010) is any condition, mental or physical, that is an impairment that has a substantial long-term effect on the individual’s ability to carry out normal day-to-day activities.
Autism, dyslexia, dyspraxia, ADHD and Aspergers are all forms of neurodivergence. Neurodiversity refers to the different ways the brain can work and interpret information; most forms of neurodivergence will meet the definition of disability. Similarly, depression and other forms of mental illness will often be covered by the EqA 2010.
Knowledge of the disability
By virtue of their very label, these conditions can be hard to identify, and employers will not always know for certain of their existence. In these circumstances, constructive knowledge – knowledge that a reasonable employer would have, had they made appropriate and exploratory enquiries – is key. There are, however, limits to the exploratory steps an employer can make. Employers are only required to act reasonably and not perfectly!
What obligations do employers have?
An employee with a disability, as defined, is protected from discrimination on the grounds of that disability. Additionally, the employer, once they have actual or constructive knowledge of the disability has a duty to make reasonable adjustments for that disabled employee. In addition, if an employer puts in place a provision, criterion or practice (PCP) that adversely affects an employee with a disability and would similarly affect other employees with the same disability, this could also be indirect discrimination.
What should employers consider doing to address hidden disabilities?
- Create a working environment that is aware of and sympathetic of hidden disabilities, whether mental illnesses or forms of neurodivergence;
- Be aware that certain processes in the workplace may trigger what you would deem to be a disproportionate response; performance management, office move, changing systems etc.
- Recognise that often individuals with forms of neurodivergence have significant strengths over some of their colleagues and focus on those;
- Build good links with other professionals such as occupational health and other healthcare services so that you have confidence in them to assist
This is a key area for employers, so if you would like any further information or advice please contact Libby Hubbard.
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