More employees are being classified as having a disability – people with conditions like stress, anxiety and depression, menopause and ADHD. And these are the kinds of formal classifications that, in turn, are providing the grounds for claims of discrimination and workplace disputes. 

In the past year, Acas data shows that workplace disputes involving claims of disability discrimination have risen by 31%. Around one in six of all disputes are now based on issues of disability.

A recent case has demonstrated the problem and the risks to HR. A tribunal ruled that a senior IT professional who’d been diagnosed with ADHD had been discriminated against by their employer. While their employer had carried out a workplace needs assessment, they’d not implemented all of the findings, including the provision of recommended training for work colleagues.

Are employers letting their staff down when it comes to less visible disability issues? 

Organisations cannot ignore the grey areas

The biggest challenge seems to be the change in attitudes and expectations. Employees expect understanding and support in response to their individual circumstances, and for conditions which may not be visible – such as stress or ADHD. And that can lead to grey areas around what constitutes a serious issue requiring special arrangements or facilities for support.

The Equality Act 2010 says an employee should be considered disabled if they have “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on [their] ability to do normal daily activities”. So again, there’s scope for interpretation and perception of impact. 

Standard advice does not go far enough

The generic advice for avoiding the risks of discrimination include:

• Ensuring an early and regular dialogue with employees on their needs for adjustments and support
• As soon as a disability has been disclosed, making sure processes are open to everyone equally
• Implementing reviews to check adjustments are having a positive effect.

There also tends to be a nod to culture. In an ideal world, organisations need to build workplace cultures with good levels of psychological safety. But that’s also the kind of environment where employees feel more able to speak up, and make discrimination claims.

Focus on fostering good relationships

It all comes down to relationships. Where there are good everyday relationships between line managers and their teams, across all levels, there are going to be more open and reasonable conversations. When there are sour relationships that allow reticence, secrecy and uncertainty to fester, it leads to rigid, competing positions that eventually turn into grievances and conflict. 

The tribunal case mentioned earlier presents a clear example of this. The senior IT manager was facing criticism from her boss and colleagues for problems when it came to multitasking, resulting from ADHD. The situation ended with discrimination claims because important people skills were lacking. Relational skills that would have enabled open conversations about what was happening and an informal resolution. 

People are generally more self-aware of what additional rights they have at work, and how they should be treated. But this shouldn’t be viewed as a source of risk and tension in HR.

With more employees identifying themselves as having a disability, this is an opportunity to forge stronger relationships, mutual understanding and engagement. If HR listens and helps, employees will recognise that support and feel renewed commitment. 

How to create ‘clear-air cultures’

To make this happen, organisations need to shape more ‘clear-air cultures’. This is about creating workplaces where everyone knows that attitudes will be reasonable and fair. Where there is honesty, openness and common sense. Where truth comes first. Tensions are eased more quickly just as a matter of course, and there’s a virtuous circle of trust and confidence in how a workplace operates.

Here are four ways to support a clear-air culture.

1. Offer mediation

Offer mediation early on – bring in someone independent to support the conflicting parties in finding an agreement and reconciliation. This allows confidential conversations to begin without the need to resort to more formal grievance and disciplinary processes.

Employers benefit most of all from having an established service that people can turn to as the standard, informal route. Mediation then becomes part of the culture, commonly used and trusted, with nothing remarkable or uncomfortable about it.

2. Guarantee professionalism

Don’t make the mistake of using untrained managers as mediators. Managers in an organisation can often assume they know best – they know the people, the situation – and don’t listen with an open mind. Instead, they make assumptions and want to get to a black and white resolution as soon as possible.

3. Make space for conversations

Managers need to structure their communications and relationships with staff in ways that provide real space and time. This helps to mitigate against knee-jerk reactions and the voicing of instant opinions. 

Face-to-face contact continues to be so important in this – with meetings needing to be arranged, it allows time for reflection ahead of the session. In-person discussions also provide a forum where behaviour is different.

4. Investigate properly

For serious grievance cases around discrimination, it’s critical that employers demonstrate a professional approach. That means having a system in place that conforms with legislation and best practice. It also requires having the capability – either through trained staff internally or external support – to carry out watertight investigations that aren’t going to lead to further challenges and disputes.

5. Build your ‘conversational integrity’

The best working environments are based on good conversations. ‘Conversational integrity’ skills can be learned and practiced, and provide the foundation for a workplace where there’s always a constructive way to reach a resolution. Core skills for conversational integrity include ‘situational awareness’, ‘curiosity’, ‘reflective listening’, ‘empathy’ and ‘self awareness’.

Further resources

• What the Capgemini tribunal teaches us about reasonable adjustments for neurodiverse employees – A recent employment tribunal case examining what happens when workplace assessments aren’t properly implemented, revealing critical gaps in neurodiversity support and the importance of following through on recommendations.
• The negative impact of keeping disabilities hidden – Explores how workplace cultures that discourage openness around disability create significant mental health risks for employees, and why psychological safety is essential for preventing discrimination disputes.
• Disabled people predicted the future of work: It’s time to listen – Examines how the social model of disability offers a proven framework for HR teams to create inclusive workplaces by removing barriers rather than trying to ‘fix’ individuals – exactly the relationship-focused approach your article advocates.