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Farrer & Co | Hidden disabilities - responding to the known and the unknown

The “not every disability is visible” campaign saw signs bearing the slogan appear in toilets around the country. You may well have seen them. It was started in 2016 by Crohn’s & Colitis UK and the campaign’s success was acknowledged at last year’s Charity Awards. The idea was born when individuals suffering with Crohn’s and Colitis reported being criticised and abused for using disabled bathrooms because they did not, to the viewing public, ‘look disabled’.

The campaign’s message has gained momentum and resonated especially with those campaigning for greater awareness around mental health and other cognitive disabilities – those pushing to challenge the common perception that being disabled means having a physical impairment which you can see.

On this point, the law (and as a result lawyers and employers) is in step. The Equality Act 2010 (as well as supportive regulations, guidance and the ECHR code of practice) define what is and is not a disability under UK law – and it plainly includes mental impairments as well as physical.

A person has a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

As you will know, disabled workers (including trainees, apprentices and contract workers) are protected from direct discrimination, harassment, victimisation and indirect discrimination which cannot be justified. And employers must also make reasonable adjustments to ensure disabled workers are not substantially disadvantaged in their work because of their disability.

One thing we can all learn from the “not every disability is visible” campaign is that we cannot know by simply observing that (a) someone has a disability (whether physical or mental), (b) what the specific challenges they face are, and (c) what steps can be taken to alleviate these difficulties. For employers who have a legal duty to take these steps, knowing neither (a), (b) nor (c) is certainly problematic and takes us, not into the unknown exactly, but - as Donald Rumsfeld’s infamously elucidated – into the known unknown.

It is known that a substantial number of the working population suffer from significant impairment which impacts their work. However, in circumstances where workers may not have disclosed these difficulties, may have developed strategies to diminish or disguise them, or have not yet faced a situation or task at work which has been impacted by their disability - who they are and what they need from their employer may be unknown.   

What can you do to respond to this known unknown?

Open good channels of communication

Appraisals are opportunities for individuals to reflect on their progress and performance and consider the feedback of others they work with. Where problems are identified by the individual or their colleagues, these should be sensitively handled and used to prompt a supportive discussion of possible causes and what the individual may find helpful in the future. Less formal and more regular check-ins with managers, having pastoral points of contact in place (in the team or HR) and workshops/training to help team members communicate well, may enable individuals to feel more able to disclose a disability, be open about things they find hard and/or ask for help. 

Learn what you can

There are lots of great resources out there. Why not use them to learn about what some of the more common conditions are and their symptoms. Although no substitute for consulting with the individual themselves (on this, see below), being informed will improve these conversations and help avoid reliance on assumptions about conditions, which may not in fact be true (on this, see below).

Dyslexia, dyspraxia, autism, ADHD, depression and anxiety are common conditions (for example, 10% of the adult population suffers from dyslexia, and more than 1 in 10 of the population are likely to have a “disabling anxiety disorder” at some stage in their lives) with symptoms that may not be obvious and/or distinguishable from character traits or habits which another person without the condition might have. These are also conditions which can have a significant impact on day-to-day activities (including social interaction, organisation and communication) and therefore on an individual’s experience at work.

As a starter, The National Autistic Society has lots of useful information on its site including guidance for employers. Similarly the British Dyslexia Association’s site includes FAQs, training services and suggested reasonable adjustments, and an employer’s guide to dyspraxia is published by the Dyspraxia Foundation.

Ask and don’t assume

If you know a worker has a condition, don’t make assumptions about what they do and do not find difficult because of it - consult with them and find out. In Isles v London Borough of Ealing an employee suffering from Asperger’s syndrome was rejected for an internal position. The employee raised a grievance, which the employer rejected, concluding that the role applied for required skills (such as building relationships, working in teams, leading workshops etc.) which they thought the employee would find challenging because of his disability. The Tribunal found that the employer had made assumptions about what the employee’s Asperger’s meant he could and couldn’t do when they rejected the grievance. It also found that the failure to consult with him about his Asperger’s and how it impacted him at work was a failure to make reasonable adjustments.

Look to occupational health for support

What do you do if a worker is experiencing difficulties and you suspect this may be caused by a physical or mental condition but the worker has not raised this as a possible cause? A sensitive referral to occupational health may be a useful way forward and could lead to a diagnosis and/or some external and expert guidance on ways in which the worker can be supported in their role.

Without the full picture, employers and/or colleagues can risk making incorrect assumptions about an individual and be wrongfooted later down the line. Doing what you can to reduce the unknown and enlarge the known - be it through online resources, expert help and from your workers themselves – will help bring the best out of your team and help identify what adjustments may be needed and whether you can accommodate them.

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