The Equality Act 2010 describes a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. This wide definition captures a number of individuals with disabilities, which are not immediately obvious.

The Equality Act requires an employer:

  • Not to treat applicants or employees with disabilities less favourably because of the disability;
  • Not to unjustifiably treat those with disabilities unfavourably for reasons arising from the disability;
  • Not to subject those employees to indirect discrimination, harassment or victimisation.
  • To make reasonable adjustments to accommodate the condition so as to minimise any disadvantage.

The Equality Act provides that an employer is not liable for disability discrimination if (1) it did not know or (2) could not reasonably have been expected to know about a person’s disability. The law is complicated and evolving but it is best to stick to this perspective.

Many of the conditions that would cause an employee to be considered disabled within the meaning of the Equality Act can be described as hidden or invisible. Typical examples would be dyslexia, depression and diabetes.

Peter Stanway, our BackupHR™ legal expert comments:

While it is tempting for employers to think that avoiding any knowledge of any condition(s) is the best way to avoid liability, case law has shown that the ostrich approach does not work. The key problem is that of constructive knowledge i.e. could/should the employer have known that the employee suffers from a particular condition from the information that they have, normally due to absences and behaviour.

The Equalities and Human Right Commission provide a Code of Practice, on what should be regarded as reasonable knowledge of a condition. The Code states that ‘an employer must do all they can reasonably be expected to do to find out if a worker has a disability’ specifically targeting the “ostrich approach”. The EHRC suggests that employers should explore the reasons for a performance reduction of a previously good employee, including asking reasonable questions regarding their health/wellbeing. Tell tale signs may appear which suggest that an employee’s health is impacting their work. Each case is fact specific, but this can include a dip in performance, absences and concerns raised by colleagues about their behaviour. Many employers rush to take action to improve the performance without first trying to understand the underlying cause. By starting a performance improvement process they could unwittingly subject the employee to an act of discrimination.

Good/wise employers will therefore maintain an open dialogue with their employees and will regularly monitor and review employee performance. The workplace culture should encourage an open dialogue about wellbeing and employers should take steps to reduce stereotyping, particularly surrounding mental health conditions.

Employers should not be afraid to start a conversation about health and wellbeing, although conducting such conversations sensitively will be crucial to a positive outcome. Employers would be well advised to explain the concerns about the employee’s behaviour before asking the employee if there are any circumstances that might be causing the problems at work.


  • Write to new employees to ask if reasonable adjustments are required to enable them to perform the role. They are not obliged to disclose conditions.
  • It will often be wise to obtain an Occupational Health report.
  • The onus is on the employer is to take reasonable steps to try and ascertain if the individual has a disability where this is not clear.
  • You need not have taken every step possible to discover an employee’s disability. It is your actions as a whole that matter.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.