Not all disabilities are visible. The Equality Act 2010 is the main piece of legislation governing discrimination. The Equality Act defines a disability as any long term physical or mental condition which has an adverse effect on a person’s ability to carry out their daily living activities.
If a person is in a wheelchair or walks with a stick its easy enough to accept that the person may have a disability. However, disabilities can also be silent and invisible.
Anxiety, depression, spectrum disorders, dyslexia, eating disorders, phobias and post traumatic stress disorder are some of the medical conditions that can be disabilities as long as they meet the definition within the Equality Act.
It is unlawful for an employer to discriminate against an employee because they have a disability. A disabled employee should not be treated unfavourably because of their disability.
It is also unlawful for an employer to discriminate against someone because the employer thinks that the person has a disability that they don’t have, for example assuming that someone has a mental health condition that they don’t have.
An employer cannot discriminate against someone because they are connected with someone who has a disability, for example dismissing someone who has taken time off work to care for a disabled child.
If an employer fires someone for having any form of disability or illness, this can also be classed as unfair dismissal.
Why are some disabilities invisible?
Mental health problems account for many “hidden disabilities”. Mental health issues are a leading cause of employee absences at work.
In October this year we celebrated World Mental Health day and massive progress has been made in breaking the taboo of mental health conditions. Despite this, there still does appear to be stigma attached to mental health conditions. There can be issues on both the side of the employer and the employee when it comes to disability discrimination in the workplace.
Employees can often be afraid to disclose an invisible disability for a variety of reasons. This can be because the employee doesn’t trust that their employer will be understanding towards their condition, or believe that their invisible illness is even real.
The employee may fear that they will be overlooked for promotion, or be demoted. Other reasons for non-disclosure include fear that the health condition might not be treated as confidential or fear that the employer might behave differently towards them.
Some people living with mental health issues can go out of their way to hide their symptoms. In one case, a young, mental health nurse with bipolar disorder struggled through work and was too afraid to speak to her bosses about the condition.
The lack of awareness over mental health conditions can lead to employees being mislabelled by their employer and colleagues. If someone is struggling with a mental health condition that they haven’t disclosed to their employer then they may even be labelled, in the workplace, as being moody, miserable, too emotional, or attention seeking.
The difficulty with covering up any disability, is that the employee might struggle to show an employment tribunal that they have been discriminated against where the employer can genuinely say that they didn’t know that the employee was disabled.