Invisible Disabilities At Work: Calling All Employers
Imagine you’ve been struggling at work ever since you can remember, wondering if your colleagues also feel like they have to put 150% in to just get their basic job done. To ask for help seems terrifying, like you’d be admitting that you can’t do your job.
Now imagine you’re diagnosed with a mental health or neurodevelopmental condition – you have answers. It’s not your fault. You deserve to be supported at work to be able to do your job, just like your colleagues may have been able to over the years. What happens next?
Many people are faced with the challenge of figuring out who they should talk to in their organisation, and how they should do it. Your employer has a duty to make reasonable adjustments to support you at work as soon as they’re aware that you might have a disability. But then what? What happens if there’s no policy in place, or if there’s no one to talk to? How do you let them know you’ve been struggling for years, and ask for help when you’re not even sure what that might be?
In this case, it’s easy for everyone panic and nothing being put in place, resulting in an escalation of the situation. This week the Government was found to have breached its duty to make adjustments for a judge who has dyslexia and needed voice recognition software to do her job like her colleagues. Instead of making this very easy adjustment, they ended up in an employment tribunal 6 YEARS later.
Many employers simply do not know how to support employees with invisible disabilities in the workplace, especially for those who are a later stage in their career. A failure to make reasonable adjustments can be disability discrimination under the Equality Act 2010.
Let’s look at the judgment:
1) ‘As a tribunal we have had the opportunity to stand back from the detail of this case and look at it holistically. Unfortunately, nobody within the respondent’s organisation was able to do the same. Put simply, the respondent organisation did not know how to handle the claimant’s situation properly.’
Asking for help at work can be very challenging for anybody, let alone a person who has been suffering in silence due to an invisible disability, maybe for a very long time. For example, many adults are diagnosed with ADHD after burning out at work. It can feel embarrassing and vulnerable to admit this is because of something outside of our control.
I coach many people who tell me they can’t disclose their ADHD at work because they will be laughed at, or face problems with getting a promotion. I didn’t even realise an invisible disability could be ADHD, before I literally WORKED in mental health and disability law - how would most people find out?!
Due to stigma, these conversations can often happen when problem have already arisen, such as an employee being given a performance review, which causes even more sensitivity and panic. Given the anxiety, pressure and high stakes involved, it might feel impossible to take yourself out of the detail and focus on the broader picture, without worrying about being judged or complained about.
2) ‘There was no pre-existing policy to deal with a judicial office-holder facing the challenges that were faced by the claimant. We accept and appreciate that the individuals within HMCTS were doing their level best in the circumstances to provide the claimant with what she needed. But in the absence of an appropriate policy or procedure they came up against significant obstacles in doing this.’
No employer wants to be accused of discrimination, but they might also not know much about how to handle invisible disabilities, and how to give a person ‘reasonable’ adjustments without shipping them off to Occupational Health (who might give a vague response, not working in the job themselves).
They might be also worried about the reaction of other employees, and how to handle confidential situations - but all that is needed is a sensible conversation about what is actually needed, listening, understanding, co-operation and trust. As more and more people feel empowered to ask for support in the workplace because of disadvantages they face in comparison to their colleagues, employers should have a reasonable adjustments policy in place.
Disability discrimination claims are the fastest-growing type in the employment tribunal, and there is the potential to award unlimited damages - having policies in place is an obvious answer to avoiding liability and needless stress for everybody involved down the line.
3) ‘The absence of an overall policy meant that nobody took ownership of the problem. It also meant that lines of accountability were unclear. Who had responsibility for taking the various steps required? If those steps were no taken (or not taken timeously) who should the claimant approach to have this rectified? Indeed, who should her leadership judges have been able to approach to rectify the problem?
Less than 1% of eligible people use the Government’s Access to Work fund which can pay for adjustments, including ADHD coaching. However, an employer might be worried about their own obligations in the meantime, given that the waiting period for applications is currently months-long - despite the average adjustment costing just £75 per person. Many do not involve any cost at all to an employer.
In professions or situations where there is no clear Human Resources team to go to, things become very complicated - just look at No.10 and their Christmas parties during lockdown. Who was there for any of the 100 employees to complain to? If a manager doesn’t understand their obligations to an employee asking for help, who are they supposed to turn to? In prestigious and ‘traditional’ industries like law, where 3% of lawyers have disclosed a disability compared to 24% of the working population, how is anybody supposed to trust that they will actually be given help, if this just ‘hasn’t been done’ before?
4) ‘It is this overall lack of coordination and pre-planning which has led to such a lengthy and problematic chronology of events in the claimant’s case.’
The answer is clear: make a reasonable adjustments policy. Have an external person you can reach out to if you like (hello!) who can mediate the conversation in a sensible and pragmatic way. Make it known across your organisation that employees who disclose a disability will be supported. Approach these conversations in a human way - not a legal way.
Once you’ve taken the ‘minimum’ step of possibly referring someone to Occupational Health - KEEP THE CONVERSATION OPEN. Even if one adjustment is put into place, an employee needs to know that they can talk to you about this on an ongoing basis, because it might not necessarily work. Often we don’t know what we need until we’re actually in a situation.
Why do this?
Reasonable adjustments simply support a person to do their job - they’re not ‘special’ or ‘favourable’ treatment - just the changes they deserve to be put on a level playing field with their colleagues. It doesn’t matter if they’re a new recruit or a CEO - they deserve to have the same support, understanding, and compassion.
Obviously, it’s ideal for an employer to follow the law, and to avoid stressful, expensive and drawn-out arguments over discrimination, especially when the majority of these situations can easily be resolved with a simple conversation. However, making adjustments for people to do their jobs properly will also boost overall productivity, employee morale, loyalty, and trust.
Embracing people being their authentic and whole selves at work can never end badly: it helps to have a more truly diverse, representative, and inclusive organisation.
How I can help
Having trained law firms like Lewis Silkin on invisible disabilities, published ‘ADHD: an A to Z’, and worked as a mental health & disability legal policy adviser, I am more than happy to support you with:
raising awareness about invisible disabilities at work
making a reasonable adjustments policy for your workplace
supporting employees who disclose a disability & facilitating conversations to be pragmatic and co-operative.
Drop me a message to discuss this further - leannemaskell@hotmail.com.