Time to Talk takes place today, which encourages conversations about mental health and how organisations can promote awareness and understanding surrounding mental health issues in their workplace. The following two questions in particular are often asked by employers:
Question: Is depression a disability?
In order for depression and other mental health conditions (which are often referred to as “invisible” or “hidden” disabilities) to be considered to be a disability under the Equality Act 2010, the following must apply:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial? (e.g. more than minor or trivial)
- Is that effect long-term? (e.g. has it lasted at least 12 months, is it likely to last for at least 12 months or for the rest of the person’s life)
It is therefore highly dependent on the individual and their particular circumstances as well as their own understanding of their condition and any relevant medical diagnosis that has been made.
It can also be difficult for employers to know about an employee’s disability where they have not expressly disclosed it or if it only becomes evident in relation to certain situations at work or whilst they are undertaking specific duties or responsibilities.
Question: How should employers deal with potential hidden disabilities?
The Equality Act 2010 expressly prohibits:
- Treating an employee less favourably than others because of their disability (direct discrimination)
- Treating an employee unfavourably because of something arising in consequence of their disability (discrimination arising from disability)
- Applying a particular provision, criterion or practice which puts a disabled person at a particular disadvantage (indirect discrimination)
- Subjecting an employee to unwanted conduct related to their disability (or of a sexual nature) which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (harassment)
- Subjecting an employee to a detriment because you believe they have done or may do a protected act (victimisation).
It also puts employers under a positive duty to make reasonable adjustments for disabled employees and job applicants where a provision, criterion or practice puts them at a substantial disadvantage because of their disability.
An employer cannot be liable for direct discrimination, discrimination arising from disability or failure to make reasonable adjustments if an employer did not know, and could not reasonably have been expected to know, that the employee had a disability. This can be particularly difficult with “invisible” or “hidden” disabilities as they can sometimes be trickier to establish, especially if the employee does not openly disclose them.
Whether an employer could reasonably have been expected to know about a disability is often referred to as whether the employer had “constructive knowledge” of the disability. If there were clues or investigations that should have put an organisation on enquiry then they may be deemed to have had constructive knowledge of the disability and may risk a finding of discrimination being made against them.
Employers may want to consider taking the following preventative steps when dealing with potential hidden disabilities:
- Be alert to the possibility that there may be one or more hidden disabilities which could explain the behaviour or concerns identified.
- Offer additional support and assistance such as training managers on how to spot signs of mental ill health and making employees aware of what support is available both within the organisation and externally. This can be achieved by having a mental health plan in place.
- Make sensitive enquiries and investigate fully, including consulting with the employee themselves. Consider obtaining an occupational health report as this can help assess an employee’s ability to undertake the work and identify what adjustments and support may be required.
- Keep in mind that management processes could potentially trigger symptoms of hidden disabilities. Also, workplace concerns, for example personality clashes, performance concerns, misconduct or increased absences could in fact be as a result of a hidden disability. Consider a temporary change in duties or reallocation of tasks to promote good working conditions where possible.
- Avoid exacerbating an individual’s conditions when approaching potential disciplinary or capability matters. Employers should be careful to avoid creating a vicious circle in which the condition of the individual could be triggered and therefore potentially interfere with the employee’s ability to progress through an investigation.
Alex Payton comments:
“Hidden disabilities, such as depression can be difficult to manage. Often the problem lies with the culture fostered by an organisation, whereby employees feel unable to speak about their problems or to acknowledge that they are struggling for fear of being seen to be weak. This needs to change and as today is Time to Talk day, I encourage all employers to look around at their workforce and to actively encourage people to speak to each other about how they are feeling and their own mental health and to engage on how best employers can address the silence behind hidden disabilities to ensure that everyone feels supported.”
If you would like any further assistance, please do not hesitate to get in touch with a member of the team.
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