Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Approximately 23% of the working-age population in the UK reported that they were disabled in January to March 2023 (so almost 1 in 4 working people), and it is estimated 70-80% of disabilities are non-visible. With this year’s National Inclusion Week 2023 theme "take action and make an impact" in mind, we explore what non-visible disabilities are and what employers can do to make a positive impact.
What is a “disability” and a “non-visible disability”?
Disability - “Disability” is one of the protected characteristics under the Equality Act 2010 and covered by discrimination law. A person has a “disability” if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, such as walking or talking. Long term means that it has lasted or is expected to last at least 12 months, or the effects are recurring. People with certain conditions or impairments (such as cancer, HIV infection, multiple sclerosis or who are severely sight impaired) are automatically classed as having a disability. Disability also includes progressive conditions that get worse over time (such as Parkinson’s).
Non-visible disability - There is no separate legal definition of “non-visible disability.” “Non-visible disabilities” (also sometimes referred to as “invisible,” “less-visible” or “hidden” disabilities) are conditions that meet the test for disability, explained above, but where the impairments are not immediately apparent to others. This includes mental health conditions, autism and other neurodivergences, cognitive impairments, hearing, vision and speech impairments, energy-limiting conditions, chronic illnesses and more.
The law does not only protect employees from disability discrimination, but it also protects job applicants, employees, workers, contractors and self-employed people hired to personally do the work and former employees.
Individuals living with disabilities are protected in the workplace from direct discrimination; indirect discrimination; discrimination arising from disability; harassment; and victimization. Employers also have duty to make reasonable adjustments.
The disability employment gap
Unfortunately, data around non-visible disabilities in employment is limited and tends to be focused on disability in general or specific conditions. However, there is significant evidence, see here and here, which shows that despite there being a legal framework to prevent discrimination, a disability employment gap still exists.
- the disability employment gap - the difference in the employment rate of people with disabilities (53.7%) and people without disabilities (82.7%) – was 29.0 percentage points from January to March 2023; and
- the disability pay gap - the median pay gap between employees with and without disabilities - has widened since 2014 and was 13.8% in 2021.
The Great Big Workplace Adjustments Survey 2023 (the “Adjustments Survey”) has found that only 37% of employees with disabilities feel their employer is genuine about removing all disability-related barriers and making the workplace inclusive for employees with disabilities.
What are some of the lived experiences of people with non-visible disabilities in the workplace?
As non-visible disabilities are so varied, experiences in the workplace can vary from individual to individual. Many of the challenges faced by those with non-visible disabilities and visible disabilities will be similar, but there may be some different considerations for people with non-visible disabilities due to the very fact that their impairment is not immediately obvious or understood by others. Some common challenges include:
- Difficulty in disclosure: when a disability is not visible to the outside world, the individual is left with choices about when, how or whether to disclose it. As explained in this recent research briefing, this decision is not an easy one “[T]hose with non-visible disabilities have dilemmas over whether to disclose their disability, due to concerns about disbelief, stigma, or confidentiality. They may need to balance the potential risks of disclosure with the need for support.” These concerns can impact on how safe they can feel about disclosing their disability in the workplace. This can also lead to “masking” where people are used to covering up their disability in the workplace.
- Inaccessible recruitment processes: applying for a job may be barrier too as recruitment processes may be inaccessible, or otherwise inadvertently discourage job applicants who have non-visible disabilities. For example, online written application forms may be difficult for some job applicants with dyslexia. Given concerns regarding disclosure, this may also mean that applicants don’t feel safe to ask for the support they need and so may be put off applying.
- Facing bias: individuals with non-visible disabilities may experience bias in the workplace, including in recruitment, promotion, and performance management processes. People with energy-limiting disabilities, may be perceived as “lazy” or “unambitious” or those who have neurodivergences may be perceived as poor communicators for not making eye contact for example. Those who have fluctuating illnesses, where there are periods of being well, may face disbelief and feel frustration at having to explain why needs may differ depending on the stage of their impairment.
- Bullying and harassment: The Adjustments Survey responses reveal that some 40% of disabled employees have reported feeling patronized or “put down” by other people at work and 38% said that that they had been bullied or harassed because of their disability or condition. Specific examples include autistic employees being called “rude” or blunt” or people with specific personality traits being referred to as “spectrum,” and others being told that they “ticked the disability box.”
- Difficulties in obtaining adjustments: Even if reasonable adjustments in the workplace are provided, for many the process to obtain or change them may be difficult and time consuming. The Adjustments Survey responses indicate that 1 in 8 employees with disabilities wait over a year to get the adjustments they need. Also, workplace adjustments may help improve a particular individual’s situation. However, they often do not go far enough in addressing barriers elsewhere in the workplace in respect of an organization’s culture and wider physical or non-physical environments or social relationships.
These extra hurdles frequently faced by workers with disabilities can take its toll, as poor mental wellbeing at work can be amplified for such workers. The Adjustments Survey explains that this is due to “the experience of not getting the support they needed and by the very nature of living with a disability or condition all day, every day.”
So, how can employers take action?
These are just some actions employers can consider taking to improve inclusion for individuals with non-visible disabilities in the workplace:
- Undertake a review: understand from surveys what barriers people with non-visible disabilities are experiencing in the workplace.
- Increase awareness, understanding and tolerance: diversity, equity and inclusion training and anti-bullying and harassment training can be used to help raise awareness about non-visible disabilities and help to prevent bullying and harassment in the workplace. Unconscious bias training can also help challenge some common misconceptions.
- Open and ongoing communication: a culture of open communication can facilitate an environment of confidentiality, trust and psychological safety, which in turn may help improve non-visible disability disclosure rates. Internal recruitment/HR teams and line managers are often the first ports of call and may benefit from training in how to handle these conversations.
- Reasonable adjustments: employers should be open minded about adjustments. Sometimes the simplest adjustments, such as allowing some flexibility in working hours or locations, can be the most effective. Given that disabilities may fluctuate over time, once an adjustment is in place regular reviews may be needed to ensure it is still working. The process itself for obtaining such adjustments should also be reviewed to ensure that it is streamlined and not in itself a barrier.
- Providing mental health support: consider what mental health support services, such as Employee Assistance Programs, can be offered to support employees and aim to promote a culture that prioritizes mental well-being.
- Review your recruitment processes: so they can flex to accommodate the different needs of individuals, if required. For example, consider verbal applications instead of written or provide interview questions ahead of time where appropriate. Demonstrating the availability of inclusive processes can potentially prevent applicants from feeling anxious about having to ask for them.
The above is not exhaustive and many of these initiatives could fit into part of a broader D, E&I strategy and set of policies. However, simple actions, even if small, can help initiate change, in fact it is often the little interactions with individuals that really matter.