Not Every Ailment Is Visible

But…My Colleague Isn’t In a Wheelchair, He Isn’t Disabled…Right?

Daily in the workplace, there is the underperforming staff who struggle with the demands of the job. Employers can easily terminate their employment…can’t they? The Employment Rights Act 1996 provides employers with a mechanism to terminate a colleague’s employment if they have:

• provided warnings
• allowed the employee a reasonable time to improve
• given them opportunities to attend training courses
• suggested webinars, seminars, and in-house events which may be beneficial and
• permitted the colleague to shadow more experienced members of staff.

However, if such measures are not having their desired effect and the colleague is measuring up then the employer is entitled to terminate the colleague’s employment, right?

Hold Up…Wait A Minute?

The employer may think they have waited for a reasonable time for the person to improve and provided warnings and support via training courses. However, employers need to consider if the colleague is ill or disabled.

What Is A Disability?

To understand what a disability is and assess if a person is affected, it is important to consider if:

• the colleague has a physical or mental impairment
• which has lasted or is likely to last over one year and
• has a substantial and adverse effect upon the person’s ability to carry out their normal daily tasks.

If the colleague meets this criterion then it is possible that the person is disabled.

But The Colleague Isn’t In A Wheelchair, He Isn’t Disabled…Right?

Businesses and commercial organizations appear to be confused over what medical conditions are classified as disabilities and how they can directly impact the abilities of affected persons to function from day to day. There are still some employers who appear not to be able to comprehend that a particular colleague may appear to be the picture of health on the surface, think that the person is not disabled, being dishonest and deliberately trying to deceive the employer. These employers do not consider these staff members to be disabled. However, it is commonplace for some disabilities to be non-visible to the naked eye and these conditions have become known as so-called hidden disabilities.

What Should Employers Do?

Lawyers should be advising their business clients who employ staff to avoid looking at the person on the surface and leaping to a rash judgment. Employers should be encouraged to make doubly sure they clarify the full background as to why a respective individual is not performing at the expected level. Employers should also be sensitively and confidentially assessing if a colleague is potentially afflicted by a disability. Taking this a stage further, employers should be investigating whether there is a causative or correlative relationship between a drop in standard and the disability. If the evidence does emerge then employers should be supporting the colleague by making reasonable adjustments as this may have a positive impact on the colleague’s wellbeing, performance, and quality of life.

Some colleagues may be afflicted by a medical condition but will not necessarily perceive themselves as disabled. Lawyers should be advising employers on:

• implementing a culture whereby such issues can be communicated transparently
• whether policies on equality and diversity are up-to-scratch
• assisting the workforce by providing suitable desks, chairs, computer equipment, and work-stations
• the provision of one-to-one meetings
• training courses which may be available for staff on this key issue and
• supporting colleagues by way of a mental health medical specialist.

If this strategy is implemented it will reduce the risk of employers getting into difficulty if faced by a colleague with a perceptively hidden disability.

ASSESSING FIRMS

#Allen&Overy #BakerMcKenzie #HerbertSmithFreehillsLLP #LewisSilkin #MishcondeReya #Simmons&Simmons #AddleshawGoddard #CliffordChanceLLP #CMS #DACBeachcroftLLP #EvershedsSutherlandLLP #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Farrell, Charlotte et al. – How businesses should approach hidden disabilities in the workplace – People Management - 25 February 2022 - 106858 (peoplemanagement.co.uk)

[2] Equality Act 2010

[3] Section 13 Equality Act 2010

[4] Rome, Paula et al. – UK: Be Aware of Hidden Disabilities – Shoosmiths LLP – 26 January 2018 – the UK: Be Aware of Hidden Disabilities (shrm.org)

[5] Code of Practice – Equalities and Human Rights Commission

[6] TUC – “You don’t look disabled” - Microsoft Word - You don't look disabled (tuc.org.uk)