There is a range of possible conditions that may not be self-evident in the way that physical disabilities often are. These conditions may have an impact or become evident only in particular situations or with certain duties or responsibilities, or the symptoms may be evident but not the cause (see box “Examples”).

It may be more accurate to describe these disabilities as hidden disabilities. Examples include:

While not a finite list, these are often misunderstood conditions and may be mislabelled or not diagnosed, especially when an employee is on the moderate or mild range of the spectrum. Another factor which can contribute to this misunderstanding is that the effects of these hidden disabilities can fluctuate and will be very different both in terms of the individual and the impact that they have. For example, an employee with ASD may function at a very high level when it comes to concentration, accuracy and memory but, by contrast, may struggle with communication and a lack of routine.

The focus in this article is on equality obligations and the risk of some form of discrimination claim, although employers have other duties, such as a duty of care to employees, and health and safety obligations. They also need to avoid any personal injury claim where the work or environment may exacerbate the condition.

The 2010 Act requires an employer:

Hidden disabilities create a particular risk for employers because the law applies a test of imputed or constructive knowledge when considering whether reasonable adjustments should have been made or whether there has been unfavourable treatment (section 20, 2010 Act). So even if a manager or employer did not have actual knowledge of the disability, liability can arise if there were clues that should have put the organisation on enquiry. If an employer knew, or ought reasonably to have known, that an employee’s performance or conduct was the result of a disability, the employer may risk a finding of discrimination if it ploughs ahead regardless or without further enquiry.

This, coupled with the concept of deduced effects, places quite a high level of responsibility on an organisation. Deduced effects means that, in assessing a health condition in order to decide whether a condition has a substantial and long-term effect on day-to-day activities, the employer must ignore any medication, coping mechanisms (such as counselling) or treatment interventions which may improve the impact or mask the true effect of the condition.

All of these matters emphasise the need to investigate and understand fully each individual circumstance and to ensure open discussion when an issue arises. It also means that the employer needs to delve further if any suspicion of a hidden disability arises. A learning issue such as dyslexia is a good example: circumstances can arise in the workplace where an employee has never been diagnosed with, or understood that he has, dyslexia, which could explain his difficulties in coping at work.

Employers should consider the following steps:

Although much depends on the individual situation, providing additional support and assistance, counselling or cognitive behaviour therapy, and flexibility (for example, in working hours or duties) as well as considering what tasks the employee can do, are all positive measures. The Employment Appeal Tribunal has given some examples of the kinds of measures that employers can take (Southampton City College v Randall UKEAT0372/05 DM, www.practicallaw.com/5-201-9062; Roberts v North West Ambulance Service UKEAT/0085/11,www.practicallaw.com/2-518-1805). Paragraph 6.33 of the Equality and Human Rights’ Commission’s Code of Practice also sets out some further examples (www.equalityhumanrights.com/sites/default/files/employercode.pdf).

Often these kinds of steps would be regarded as reasonable adjustments. An employer should explore what coping mechanisms will help the employee and how the organisation can support these. In some circumstances, and especially where the work environment has contributed to the condition or issues, an employer might be expected to pay for additional, private health support (Croft Vets Ltd and others v Butcher UKEAT/0430/12, www.practicallaw.com/3-549-7786).

An employer should be prepared to adjust management processes, especially while a matter is under investigation. A condition that results in conduct issues needs to be addressed but an employer would be expected to modify its usual approach and rules; for example, by allowing an employee to be accompanied by his mental health nurse, a non-employee or a union representative (Di Benedetto v Guy’s and St Thomas’ NHS Foundation Trust ET/2370562/11). The case law has drawn some very clear demarcations, however, and while an employer must make adjustments to enable a return to work and continued employment, or at least a careful consideration of whether this is feasible with adjustments, that does not extend, as a general rule, to extending sick pay entitlement, or to allowing early retirement, a sabbatical or extended time off (whether paid or unpaid) (Tameside Hospital NHS Foundation Trust v Mylott UKEAT/0399/10; Royal Bank of Scotland v Ashton UKEAT/0542/09 and 0306/10).

When a disciplinary investigation is underway, employers should be careful to avoid creating a vicious circle in which the investigation triggers or exacerbates the condition and so interferes with the employee’s ability to progress through the investigation. Often, action is needed to address the concerns and the adjustments that will enable the employer to complete the investigation and, hopefully, to achieve the best outcome for all involved.

Audrey Williams is a partner and discrimination law expert at Fox Williams LLP.