FAQs: Disability at Work for Employers

1. What does legally disabled mean?
2. What is the ACAS definition of disabled?
3. How do you ask if an employee has a disability?
4. How can I support a new member of staff with a disability?
5. What is a hidden disability?
6. How can I best support an employee with an invisible disability in the workplace?
7. Are you allowed to ask job applicants about their sickness records?
8. Does your employee’s disability mean they are entitled to reasonable adjustments?
9. You have an employee who is dyslexic. Are they protected under the Equality Act 2010? What is the test?
10. You think one of your employees might be disabled. Should you make a referral to Occupational Health to assess whether you should make reasonable adjustments?
11. What is the Occupational Health adviser likely to ask your employee?
12. Is your employee entitled to see their Occupational Health report before you do?
13. Occupational Health has recommended adjustments. You are happy to make them but it will take time. Is this a concern?
14. What sort of adjustments can you be expected to make?
15. Can you refuse to make reasonable adjustments?
16. One of your employees is going part-time as a reasonable adjustment. Do you have to enhance their pay?
17. Can you discipline a disabled employee for absences?
18. One of your staff keeps being late because she’s delayed looking after her disabled father. You can understand staff having problems with childminders and nurseries but this keeps happening. Do you have to put up with it?
19. Your accounts clerk has been having difficulty reading spreadsheets and she has recently told you she has been registered partially-sighted. She has been slowing up and now it seems she can only get worse. What should you do?
20. One of your staff has raised a grievance complaining that you have discriminated against him due to his depression, which he says is a disability. He’s never said he was disabled and we’re all suffering from stress at work!
21. You have heard some of the lads in your workshop joking around calling each other names that could be described as “disablist.” No one seems bothered, should you make them stop?
22. You own a small supermarket, which means all staff have to help out where needed, taking in goods, stocking shelves, operating the tills, etc. One of your staff seems to be struggling with the heavy goods, what should you do?

What does legally disabled mean?

Under the Equality Act 2010, a person is legally disabled if:

• They have a physical or mental impairment
• That impairment has a substantial and long-term adverse effect on their ability to carry out “normal day-to-day activities.”

Understanding what legally disabled means is essential for employers. It helps you recognise when an employee is protected under the Equality Act 2010 and when you may have a duty to consider reasonable adjustments.

What is the ACAS definition of disabled?

The ACAS definition of disabled is based on the Equality Act 2010. According to ACAS, a person is disabled if:

• They have a physical or mental impairment.
• That impairment has a substantial and long-term adverse effect on their ability to carry out “normal day-to-day activities.”

ACAS also highlights the following points for employers to consider:

• Physical or mental impairment can include chronic illness, mobility or sensory conditions, mental health conditions, or neurodivergence.
• Substantial effect means the condition significantly limits day-to-day life, not just minor inconveniences.
• Long-term means it either has lasted or is likely to last 12 months or more, or for the rest of the person’s life.
• Day-to-day activities cover everyday tasks such as walking, communicating, reading, using a computer, preparing food, or personal care
• Some conditions are automatically classed as a disability: e.g., cancer, HIV, multiple sclerosis, and certain visual impairments.
• The law also protects people who were disabled in the past.

How do you ask if an employee has a disability?

Asking if an employee has a disability should be approached with sensitivity and respect. Focus on finding out what help and support your employee might need and avoid direct or diagnostic questions.

For example, if you notice that an employee may be facing challenges or barriers at work, instead of asking questions such as “Do you have autism?”, start by gently sharing what you’ve observed and following up with supportive questions, such as:

• “Are there any adjustments that would help you in your role?”
• “Are there tasks or aspects of your job that you find difficult?”

Be ready to listen. The goal is to identify practical ways to help and not to diagnose a disability.

In some cases, it may be appropriate to involve Occupational Health or request medical advice, but always with the employee’s consent. Document agreed adjustments. Clearly confirm what you’ve agreed in writing, review it, and keep a record so it’s not lost over time.

Handled sensitively, these conversations avoid discrimination, help build trust with an employee, with a disability, meet legal responsibilities, and ensure that appropriate adjustments can be put in place where needed.

How can I support a new member of staff with a disability?

Supporting a new member of staff with a disability should be handled sensitively and in line with your legal responsibilities as an employer. You can do this by:

• Having an open, respectful conversation about what they need to work comfortably and effectively – focus on support, not diagnosis.
• Asking what adjustments would help and avoiding assumptions.
• Considering reasonable adjustments (a legal duty once you know, or ought to know, they have a disability). This may include changes to hours, equipment, workload or how tasks are carried out.
• Using Occupational Health if their needs are unclear or complex (with their consent).
• Documenting and reviewing adjustments regularly, as needs may change over time.
• Creating an accessible, supportive culture where staff feel safe to talk about disability.
• Protecting them from disability discrimination, harassment and victimisation, and applying policies fairly with appropriate adjustments in place.
• When talking about disability, use respectful, person-centred language. Remember that preferred language can vary from person to person so if in doubt ask politely how they’d like their condition or access needs to be described.

As an employer, ensuring the right support from day for a new member of staff with a disability means you’re not only meeting your legal obligations, you’re also helping a new employee contribute their best to your organisation.

What is a hidden disability?

A hidden disability, sometimes called an invisible disability, is a condition that isn’t immediately obvious but which may still meet the legal definition of disability under the Equality Act 2010.

Examples of hidden disabilities include chronic illnesses, mental health conditions, neurodivergent conditions like dyslexia, autism, or ADHD, and fluctuating conditions.

Symptoms may include pain, fatigue, cognitive difficulties, or sensory impairments such as vision or hearing loss.

How can I best support an employee with an invisible disability in the workplace?

• Encourage open, private conversations so the employee feels safe to share challenges that aren’t immediately visible.
• Focus on practical support, not medical details – listen to how their invisible disability affects day-to-day work.
• Agree on reasonable adjustments that address specific barriers, such as flexible hours, quiet workspaces, assistive technology, or adjusted workload.
• Use occupational health if needed, but only with the employee’s consent, to identify the most effective adjustments and do obtain their GP notes firs.t
• Document and review adjustments regularly, as the impact of invisible disabilities can fluctuate over time.
• Train managers to recognise and respond sensitively to invisible disabilities, understanding that employees may “look fine” while still facing significant challenges.
• Create a supportive and inclusive workplace culture where employees feel safe disclosing invisible disabilities without fear of stigma or negative consequences.
• Ensure policies protect employees, including anti-discrimination, harassment, and performance policies that reflect the realities of invisible disabilities.

Is disclosure of a disability to an employer legally required?

No. There is no legal requirement for an employee to disclose a disability. It is entirely their choice if and when they share this information. However, employers can only put reasonable adjustments in place once they know, or could reasonably be expected to know, that someone has a disability.

Are you allowed to ask job applicants about their sickness records?

No. You must not ask about health and sickness when deciding who to recruit – but you are allowed to ask questions in order to:

• Establish whether the applicant is able to undergo an assessment, and if they are not, decide what reasonable adjustments you can make to ensure that the recruitment process is fair. For example, you can ask whether the applicant is able to complete a written test
• Establish that the applicant is able to carry out the main functions of the job
• Monitor diversity among the applicants
• Decide whether to positively discriminate

It is for you to show that any questions you ask are justified.

A question about the applicant’s number of sick days would not normally be justified.

Does your employee’s disability mean they are entitled to reasonable adjustments?

If your employee is considered to be disabled as set out by the Equality Act 2010, and if you know about this, or ought to have known, then you are required to make reasonable adjustments to help your employee at work.

See our factsheet on disability and reasonable adjustments to find out more.

You have an employee who is dyslexic. Are they protected under the Equality Act 2010? What is the test?

Your employee could be disabled if their dyslexia is so severe as to have a substantially adverse effect on their ability to carry out day-to-day activities. Reading would be a day-to-day activity as well as a work activity. If your employee has mild dyslexia this might not result in their disability being substantially adverse enough to meet this threshold.

You think one of your employees might be disabled. Should you make a referral to Occupational Health to assess whether you should make reasonable adjustments?

It is sensible for you to arrange an assessment, particularly if it is unclear whether your employee is disabled under the Equality Act. It is best practice to refer employees to Occupational Health if, for example, they have been off sick from work for some time, or if they have a long term health problem as you will need to know the expected prognosis.

The Occupational Health specialist will give you advice on how to make a referral.  For example, they might have a specific form for you to complete and a list of information or documents they require.  It is common for Occupational Health specialists to request job descriptions.

When making a referral to Occupational Health you should obtain your employee’s written consent and also provide them with a statement of their rights.

An Occupational Health adviser might be a nurse or a doctor. They will talk to your employee about their sickness and how it affects their work. The specialist should produce a report stating whether, in their opinion, your employee might be disabled and what (if anything) they believe you, as the employer, should be doing to support your employee at work.

What is the Occupational Health adviser likely to ask your employee?

This depends upon why you have made the referral, but in most cases, the Occupational Health adviser is likely to ask your employee about their current illness:

• What their symptoms are
• How long they have lasted
• What medical attention they have sought
• Whether they are taking any medication or receiving any treatment
• How much longer the illness is likely to last
• When your employee thinks they will feel able to return to work or continue working
• Whether the employee feels that their employer should be doing anything to support them

Is your employee entitled to see their Occupational Health report before you do?

Yes.  Employees are entitled to see the report before it is sent to you and they are entitled to suggest changes, but not insist on them.  Employees can refuse to allow the Occupational Health physician to disclose their report to you, however this is rare.

Occupational Health has recommended adjustments. You are happy to make them but it will take time. Is this a concern?

You must make reasonable adjustments within a reasonable timeframe of receiving the report. Inviting your employee to a meeting is usually advisable to discuss the Occupational Health report and explain what you are doing to implement the adjustments.

If this will be a longer process, you can explain to your employee why this is the case and try to agree on timescales. Until you implement the adjustments, your employee may need to be signed off sick or given amended duties.

What sort of adjustments can you be expected to make?

Adjustments can take three forms:

Firstly, you must take reasonable steps to provide:

•  Auxiliary aids to assist disabled employees
• To change the physical features of the workplace where these place disabled people at a disadvantage
• To make other adjustments where there is a “provision, criterion or practice” which could place a disabled employee at a “substantial disadvantage”, in comparison to non-disabled employees

In those circumstances, the law requires you to “take such steps as it is reasonable” to avoid that disadvantage so that your employee can continue to work.  Reasonable adjustments can therefore include:

• Allocating your employee’s duties that they struggle to perform because of their disability to other employees
• Changing your employee’s days or hours of work
• Changing your employee’s place of work
• Allowing more time for your employee to complete certain tasks or parts of their role
• Allocating other employees to assist your employee

Whether a particular adjustment is reasonable depends upon all of the circumstances.

Can you refuse to make reasonable adjustments?

If you are concerned that the cost of an adjustment is too high, or it would be too difficult to implement in practice, then you should seek legal advice to see whether the adjustment really is a “reasonable” one that the law requires you to make.

However, if an adjustment is reasonable then you cannot refuse to make it. If you were to refuse to make reasonable adjustments, then your employee could bring a claim for discrimination. They might also resign and claim constructive dismissal.

One of your employees is going part-time as a reasonable adjustment. Do you have to enhance their pay?

No, not unless you have already agreed to do so or a policy is in place allowing for enhanced pay. Reasonable adjustments allow disabled employees to stay in work; they do not guarantee full pay.

Can you discipline a disabled employee for absences?

If your employee’s absences are due to their disability, then you might be at risk of a discrimination claim if you issue warnings. You must be able to show that any disciplinary sanctions are “objectively justified,” considering the frequency and duration of absences and earlier sanctions.  Any employer wishing to discipline disabled employees for issues relating to their sickness should seek legal advice.

One of your staff keeps being late because she’s delayed looking after her disabled father. You can understand staff having problems with childminders and nurseries but this keeps happening. Do you have to put up with it?

If you are turning a blind eye to lateness associated with childcare but disciplining someone for being late because of a relative’s disability, you are likely to be guilty of Direct Discrimination under the Equality Act 2010.

You don’t have to be disabled yourself to benefit from this protection under the Act. The wording of the Act outlaws less favourable treatment “because of” disability. That is, it is not the disabled person that has to suffer the less favourable treatment. See our factsheet: “Is your Employee Disabled under the Equality Act?” for more information.

Your accounts clerk has been having difficulty reading spreadsheets and she has recently told you she has been registered partially-sighted. She has been slowing up and now it seems she can only get worse. What should you do?

If her poor vision has been certified by a consultant ophthalmologist, it would mean that she is deemed to be disabled for the purposes of the Equality Act without having to satisfy the usual definition of having an impairment that substantially and adversely affects normal daily activities.

The Equality Act protects from various forms of discrimination. It requires you to make reasonable adjustments to help her overcome any disadvantages she suffers at work, or provide auxiliary aids to help her do her job.

One of your staff has raised a grievance complaining that you have discriminated against him due to his depression, which he says is a disability. He’s never said he was disabled and we’re all suffering from stress at work!

For some forms of discrimination falling under the Equality Act, you, as the employer, must know (or should have known) or believe that someone is disabled. For example, if he has been sending in sickness certificates that state that the reason for absence is depression, then it is likely that you “ought to have known” that this might be a disability falling under the Equality Act 2010.

However, if he is disabled and you treated him unfavourably because of something arising from his disability, he would not succeed with a claim if you can show that you had no grounds for knowing about his disability. Similarly, the duty to make reasonable adjustments does not arise if you don’t know someone is disabled.

You have heard some of the lads in your workshop joking around calling each other names that could be described as “disablist.” No one seems bothered, should you make them stop?

You might not be aware that anyone is objecting, but even so, you run the risk of someone complaining of harassment. Harassment occurs when there is unwanted conduct that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading or offensive environment.

One of your staff could have a family member with a disability and might feel that their colleagues are being abusive. In these circumstances, it is very likely that they would find this behaviour offensive. Have you got a comprehensive harassment policy? If not, please contact us to review your policies.

You own a small supermarket, which means all staff have to help out where needed, taking in goods, stocking shelves, operating the tills, etc. One of my staff seems to be struggling with the heavy goods, what should you do?

I’m sure you are aware of your obligation to safeguard the Health and Safety of your staff. If any of them are disabled for the purposes of the Equality Act 2010 you have additional obligations towards them. You should speak to your staff to see if they have any particular impairment that affects them. If they do, get a medical report, so that you have a better understanding of their condition and needs.

If they are disabled you have a duty to make reasonable adjustments to the normal job requirements. This could mean doing something like removing responsibility for moving heavy goods.

The job requirements could also be indirect discrimination. This occurs when an employer applies a provision, criterion or practice (PCP) to all staff that particularly disadvantages someone with a particular disability.

There is a potential defence to this form of discrimination when the PCP is a proportionate means of achieving a legitimate aim. Whilst you only have an obligation to make reasonable adjustments when you know (or ought to know) someone is disabled, indirect discrimination can occur without that knowledge.

For employment disability discrimination advice for employers, contact our expert Employment Law solicitors. You can also contact us today on 01273 609911, or email info@ms-solicitors.co.uk to find out how we can help you with your case.