The Complexity of Disability Discrimination for Invisible Conditions

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Disability discrimination is often misunderstood, particularly when it comes to invisible disabilities. Many are unaware that the Equality Act 2010 (EqA) protects employees with a wide range of health conditions, some of which might not be immediately visible. If you are living with a disability that is not obvious to others, you still have the legal right to protection at work, but understanding the ins and outs of this protection is essential.

Damian McCarthy has extensive experience assisting employees who face discrimination due to invisible disabilities. If you believe you are being treated unfairly because of your disability, understanding the legal complexities surrounding invisible disabilities and knowing when to take a claim to the Employment Tribunal is key.

What is a Disability Under the Equality Act 2010?

The first important aspect of understanding disability discrimination is knowing what is considered a ‘disability’ under the Equality Act 2010. According to the EqA, a disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

Importantly, the condition does not need to be physically visible to qualify as a disability. In fact, the law extends to a wide range of conditions, including mental health issues such as depression, sensory impairments, autism, and many others that might not be immediately obvious to those around you.

For example, someone with a condition like depression may not be visibly disabled but could still experience significant day-to-day challenges. If the condition has a substantial and long-term impact on your life, it is likely to be considered a disability under the EqA.

Why Invisible Disabilities are an Area of Concern

Invisible disabilities can be particularly challenging as they are not immediately apparent. Conditions like mental health issues, chronic pain, neurodiverse conditions, and fatigue-related disorders often do not have visible signs but can impact how someone performs at work. Unfortunately, the lack of visible symptoms can make it harder for employers or colleagues to understand the severity of the situation, leading to misunderstandings or, worse, discrimination.

While the law recognises a wide array of conditions as disabilities, there must be one key factor in place for discrimination protection to apply: disclosure.

The Importance of Disclosure in Disability Discrimination Claims

Under the Equality Act 2010, for an employee to be protected from discrimination, their employer must either know about their disability or reasonably be expected to know. This is essential because an employer cannot be held accountable for discriminating against someone on the grounds of their disability if they were unaware of it.

For anyone with a disability, disclosing the condition to your employer can be daunting. Many fear that revealing their condition might lead to them being overlooked for opportunities. However, without disclosure, your employer has no obligation to make reasonable adjustments or prevent discrimination based on your condition. While it might feel uncomfortable, keeping your employer informed is the first step to getting legal protection from the EqA.

It is also important to remember that if your condition changes, you should keep your employer up to date on how this affects your ability to perform your role to get ongoing support. Being proactive about communication can help both you and your employer address challenges effectively and create a more inclusive working environment.

How to Disclose a Disability

When you disclose a disability, it is beneficial to do so in a professional manner. While there is no formal process required by law, you may want to start by speaking to your HR department or manager. It is often helpful to put your disclosure in writing as well, outlining your condition, how it affects your work, and any reasonable adjustments you believe would help you carry out your duties. This might include requests such as:

  • Flexible working hours
  • Modifications to the physical workspace 
  • The option to work from home if necessary
  • Regular breaks 
  • Adjustments to workload or deadlines

Making your needs known in writing can also provide a record of the conversation, which is useful should legal action be necessary in the future.

What if an Employer Knows About a Disability but Still Treats an Employee Unfairly?

Even if your employer knows about your disability, it does not mean you will automatically be protected against discrimination. Unfortunately, discrimination can still occur even with disclosure, and this is where the complexity of disability discrimination comes in.

For instance, direct discrimination happens when you are treated unfairly because of your disability. An example of this might be being overlooked for a promotion or being given less favourable work assignments simply because of your condition.

There is also indirect discrimination, which is more complicated. This occurs when a provision, criterion, or practice (PCP) that applies to everyone ends up disadvantageous to people with disabilities. For example, if your employer requires everyone to attend early-morning meetings, and you have a condition that makes it difficult for you to do so, the policy might indirectly discriminate against you. In these cases, your employer would need to demonstrate that the policy is in place as a ‘proportionate means of achieving a legitimate aim’, and that reasonable adjustments could not be made.

If you feel that you are being treated unfairly because of your invisible disability, you have the right to challenge this treatment by following your employer’s grievance procedures. If the issue is not resolved internally, you may be entitled to pursue a claim for disability discrimination at an Employment Tribunal.

What to Do if You Are Facing Disability Discrimination

If you think you are being discriminated against due to your disability, it is important to act quickly and protect your rights. Here are some steps you can take:

  • Document everything – Keep detailed records of any conversations, emails, or meetings related to your disability and the discrimination you are experiencing. This will be invaluable during an Employment Tribunal claim. 
  • Raise a grievance – In most cases, raising a formal grievance with your employer about the discrimination can be effective. Your employer may be unaware of the impact of their actions, and a formal complaint may help rectify the situation.
  • Get legal advice – Disability discrimination is a complicated area of law, and Damian McCarthy specialises in helping employees navigate discrimination claims. If you believe you are being treated unfairly because of an invisible disability, he can help you understand your options and guide you through the process.

Speak to an Expert About Disability Discrimination 

Invisible disabilities may not be immediately apparent, but they are still covered by the Equality Act 2010. As an employee, you have the right to be treated fairly in the workplace and to request reasonable adjustments that enable you to perform your role. However, disclosure of your disability is key to ensuring you are protected under the law. 
If you believe you are being discriminated against because of an invisible disability, do not hesitate to get legal advice. Damian McCarthy is committed to supporting employees in challenging discrimination cases and securing the fair treatment they deserve. To discuss your situation further, contact us today for a confidential consultation.