According to a recent study undertaken by BUPA, 43% of employees with a less visible disability haven’t disclosed it to their employer. This raises the question: do employees have to disclose disabilities, and what’s the legal position if they don’t?

There’s no specific legal obligation for employees to disclose that they have a disability. In fact, the survey found that 23% of those with a less visible disability hadn’t disclosed it because they were worried that they wouldn’t be believed, and 20% were concerned that it might impact their career opportunities.

What is your responsibility as an employer?

Under the Equality Act 2010, if you do not know of an employee’s disability and couldn’t reasonably be expected to know, there is no discrimination arising and no duty to make reasonable adjustments.

In other words, you need to have actual or constructive knowledge of the employee’s disability before you can be found liable for failing to make reasonable adjustments or for discrimination relating to disability.

However, just because an employee hasn’t disclosed their disability to you or you haven’t found out about it through other means, you may still have constructive knowledge of it.

For example, if an employee is taking a lot more time off sick or for hospital appointments, or there are changes in their behaviour at work or in their performance levels, these could all indicate that an employee may have a disability. You should then take reasonable steps to find out whether they might be disabled, rather than burying your head in the sand.

Ways to investigate this may include, for example, holding return-to-work meetings following sickness absence, considering the reason for absence specified on their statements of fitness for work (fit notes), and seeking medical advice from the employee’s GP or your occupational health (OH) advisors with their consent. Although you must ultimately reach your own conclusion about whether an employee is disabled and not just unquestionably accept the opinion given by your OH advisors,.

However, this is not to say that every employee who displays the above behaviours should automatically be considered disabled and treated accordingly under the Equality Act 2010. Other times, a change in behaviour at work could simply be down to a conduct issue with the individual, which may require further action or progressing down your disciplinary procedure.

Similarly, you don’t need to take every step possible to establish whether an employee is disabled in order to avoid having constructive knowledge of their disability.

But you do need to ensure that you establish which route is appropriate for the situation at hand and that you have taken all reasonable steps to do so before taking action.

This can be a tricky area to navigate through, and each scenario is individual. If you have a situation that you are currently struggling with as an employer, please do not hesitate to get in touch so we can guide you appropriately.