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Rise in discrimination claims highlights risks from ‘invisible’ disabilities

World Mental Health Day was observed earlier this month. This annual event, which is promoted by the World Health Organisation, aims to raise awareness of mental health issues. It also provides a reminder to employers of their responsibility to support the wellbeing of employees, including those with ‘invisible’ disabilities, such as depression, anxiety, dyslexia and dyspraxia.

Responsibilities

There is a basic legal requirement under the Health and Safety at Work Act 1974 to provide a safe working environment for employees. A healthy working environment will also help to steer employers clear of the costs and reputational risks associated with claims in employment tribunals or civil courts.

Employers have further duties under the Equality Act 2010, which protects employees with long-term health conditions against discrimination because of their disability. Employees making claims under this legislation must be able to show they have a functional impairment arising from their condition: a diagnosis is not enough. Mental health conditions and other invisible conditions can amount to disabilities provided they have an impact on normal daily life. For example, depression can be a disability if it has lasted or is likely to last 12 months or more or if it is likely to recur.

Dyslexia has similarly been held to amount to a disability. We have not seen many cases involving dementia yet, but employers need to be aware that poor performance arising from memory loss or inability to concentrate might be evidence of an underlying or developing condition.

The Equality Act also imposes a range of duties on employers around making reasonable adjustments for people with disabilities. The aim here is to level the playing field, so the relevant question is: “Is there anything we can be doing that will alleviate the substantial disadvantage caused by disability?” The duty applies to physical features of the workplace (for example, removing glass partitions for a partially-sighted employee), and to any provision, criteria or practice that affects a disabled employee in a way that would not affect a person without a disability. For example, if the working day begins at 9am, an employer rehabilitating an employee who has had time off for depression treatment might consider allowing that person to start later and work later, as mornings can be difficult.

The proposed adjustment must address the problem and have a chance of success but there really is no limit on how far adjustments can go provided they address the problem and are reasonable.

Awards

There is no ceiling on tribunal awards in disability discrimination cases – unlike in other kinds of unfair dismissal cases. Awards can be punishing for employers who get it wrong. For example, in O’Doherty v RBS [2014] a tribunal held that RBS should have delayed disciplinary proceedings against an employee with depression. The mistake cost the bank £126,348. In Harris v Monmouthshire County Council [2015] an award of £238,216 was made against the council for mishandling an ill-health dismissal arising from disability. In fact, seven of the 10 highest tribunal awards in 2014 were for disability discrimination, with the sums awarded ranging from £101,000 to over £500,000.

Prevention

At a time when overall numbers of tribunal claims are declining, claims for disability discrimination are rising. Employers would, therefore, be well-advised to take the following steps:

  • Adopt a zero tolerance approach to poor behaviour, including bullying and harassment, as well as overt discrimination against employees with disabilities
  • Create an open and supportive workplace culture where employees feel comfortable about disclosing mental health issues and other invisible disabilities. This will enable the employer to make the right adjustments 
  • Take a health temperature check by inviting staff to respond anonymously to a survey asking whether they have an invisible disability, whether they have declared it and, if not, why they have not declared it. This will help to identify if anything is wrong with the current workplace culture  
  • Provide company-wide awareness training, which is a key way of ensuring that managers know how to manage employees with health conditions, and employees know where they can go for help
  • Encourage senior members of staff to speak openly about any invisible disabilities they have, as Virgin boss Richard Branson has spoken about his own dyslexia. Such an approach can have a positive impact on the way people with disabilities are perceived
  • Consider a reasonable adjustments ‘passport’ system, which protects employees’ privacy and enables them to get the adjustments they need without openly declaring invisible disabilities. It also allows the organisation to move them to new roles while ensuring that the correct measures are in place

It’s in everyone’s best interests to address health and wellbeing at work – especially now that many people will have to work until their late sixties or beyond.

 

Added: 03-11-2016
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