The effect of COVID-19 on hidden disabilities

?The Health Foundation has discovered that more than two thirds of adults in the UK report feeling worried about the effects of the pandemic upon their lives.

The most common issue affecting wellbeing is concern about the future, followed by feeling stressed or anxious.

While some degree of worry is understandably widespread, this may be compounded in the case of those with neurodivergent conditions or so-called hidden disabilities, particularly in the new homeworking landscape.

In this article we explore how the pandemic adversely affects sufferers with hidden disabilities, and the challenges faced by employers and employees alike. But first, let us briefly discuss the term and how to identify someone with neurodivergent conditions.

Some employers might easily fall into the trap of thinking that if an employee doesn’t look disabled, and appears fit and healthy, that they don’t meet the definition of disability under the Equality Act 2010. This is a misconception.

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Generally speaking, hidden disabilities are mental or physical conditions that are not immediately apparent, but that have a substantial and adverse effect on an individual’s day to day life.

Hidden disabilities include mental health conditions such as depression, anxiety and PTSD, dyslexia, dyspraxia and autistic spectrum disorder, as well as physical conditions such as diabetes, arthritis and epilepsy.

The employer will have either actual or constructive knowledge of the disability. Either the employee will tell their employer they have a condition and provide evidence to support a diagnosis, or certain behaviours may place the employer on notice.

As soon as an employer has knowledge, it must not treat the employee unfavourably, and is fixed with the obligation to make reasonable adjustments to remove workplace barriers. Of course, not all adjustments are considered reasonable. Cost may be a factor but in many cases adjustments don’t have to cost a great deal.

It may be rather challenging to identify adjustments for those with hidden disabilities. For example, a newly diagnosed dyslexic employee may not have sufficient understanding of their condition themselves to explain what assistance they require. The difficulty there is that the duty to adjust working practices rests with the employer.

One particular challenge presented by the homeworking environment includes isolation, and the absence of one-to-one mentorship, so often required for certain neurodivergent conditions, such as dyslexia or Asperger’s syndrome.

Another particular challenge of remote working is the absence of physical administrative support. Those who have difficulty writing and using a keyboard for example, may have benefitted from dictating work to a colleague when in the office. The employer should consider providing speech to text software, as well as clear written instructions on how to undertake and complete tasks.

Routine can be important for those with certain conditions such as autism or dyspraxia. Sufferers are likely to need handholding and forewarning of imminent changes that disrupt their usual working practices.

An employer might consider implementing a structured daily or weekly roadmap of tasks, coupled with regular virtual contact. If an employer is considering meeting with such an employee in a formal context, or considering redundancy, it should give sufficient notice and additional time to allow the employee to prepare for what lies ahead.

There is also the challenge of coming back to the physical workplace. Those who have a predisposition to stress, may be concerned by travelling at peak times for fear of infection.

In the reported case of Caen v RBS Insurance Services Ltd, RBS failed in its duty to allow an agoraphobic employee to travel to work at a particular time of day. The lesson is that if an employer insists on a particular way of working, then it needs to be prepared to justify it.

People by their very nature can be resistant to change, be it through fear or comfort, and this may be more prevalent amongst those who suffer with hidden disabilities. It is important to emphasise however, that those with hidden disabilities can bring high levels of creativity, entrepreneurship and diligence to the workplace. With the correct measures in place, they can continue to play a part in a changing world.

Meredith Hurst is a partner in the employment law department of Thomas Mansfield