It is estimated that almost 20% of the working population in the UK are disabled. Many of these individuals do not disclose their disabilities at work because they fear being unsupported or discriminated against. However, by not doing so the employer is not able to put in place any reasonable adjustments which would support the disabled employees.
It often comes as a surprise to employers that employees are under no positive duty to disclose their disability. They are not obliged to share that information in the workplace.
This does not mean that employers are completely off the hook. When bringing a case of disability discrimination before an employment tribunal, the Claimant must show that the employer had knowledge of the disability. This can be actual knowledge (when the employee explicitly tells them they are disabled) or constructive knowledge (the employer ought to have known they were disabled).
The latter can be quite subjective and fact sensitive. Employers must do all they can reasonably be expected to do to find out if a worker has a disability.
The case of Department of Work and Pensions v Hall UKEAT/0012/05 illustrates how far this duty goes. The Employment Appeal Tribunal decided that the employer should have known the employee was disabled with a psychiatric condition. She had not disclosed this disability in the health declaration form but her refusal to let the employer access her medical records and her volatile behaviour should have been a “warning sign”. Additionally, her manager and HR saw her application for disability tax credit and made no further enquiries.
The lesson for employers is that it is not sufficient in the eyes of the law to expect employees to disclose their disabilities, including invisible ones. The duty not to discriminate against disabled employees and put in place reasonable adjustments will apply until it can be shown that the employer has done all that could be reasonably expected of them to find out if the employee has a disability, so processes should be put in place to demonstrate this.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.