Dealing with hidden disabilities in the workplace | Insights

Hidden or invisible disabilities challenge traditional understandings of disability in the workplace, as they are not immediately apparent but may nevertheless significantly affect an individual’s ability to perform and participate fully in working life. Conditions such as mental health disorders, chronic illnesses, or neurodevelopmental conditions can raise particular legal challenges related to recognition, disclosure, and the employer’s duty to provide reasonable accommodations.

This article provides a comparative analysis of how the legal frameworks in Denmark and the United Kingdom address hidden disabilities in the workplace. By examining relevant legislation and legal principles, the article explores how employers and employees navigate issues such as disclosure, workplace adjustments, and protection against discrimination when disabilities are not immediately visible.

1. Are employees required to disclose a hidden disability to the employer?

DENMARK

Employees have a duty under section 6 of the Danish Health Information Act, to inform the employer, on their own initiative and prior to employment of any illnesses or symptoms of material significance to the employee’s ability to perform the job. This obligation also extends to disabilities regardless of whether they are visible or hidden

The decisive factor is not the visibility of the condition but whether it results in a limitation that prevents an individual from participating in working life on an equal basis with others. Whilst the condition does not need to be incurable, it must be of a long-term nature.

Importantly the duty of disclosure applies where the disability or condition has a material impact to the employee’s ability to perform the work. Accordingly, an employee who, for example, suffers from a mental health disorder that does not effect their ability to function equally in the workplace is not obliged to inform the employer about the condition, cf. section 6 of the Danish Health Information Act.

In the UK employees are not required by law to disclose their disability to their employer. That said, ACAS guidance advises that an employee should disclose their disability to their employer if they need support and doing so could also help to protect their position should legal proceedings become necessary in future. This is particularly important in the case of hidden disabilities where an employer is less likely to be aware of the disability.

To be held liable in most (although not all) disability discrimination claims, an employer must have knowledge of an employee’s disability, whether this is actual knowledge or constructive knowledge (i.e. it ought reasonably to have known of the disability). Naturally, a hidden disability is typically harder for an employer to identify and therefore, when bringing a claim, it is harder for employees to establish that their employer had knowledge of their disability. Notwithstanding this, constructive knowledge remains an important consideration and employers should consider whether any issues that arise with an employee are potentially related to a hidden disability, even if the employee has not expressly disclosed a disability to them.

2. Is an employer obliged to initiate workplace adjustments for an employee with a hidden disability?

DENMARK

Employers have, under section 2a of the Danish Anti-discrimination Act, a duty to provide reasonable workplace adjustments for employees with disabilities. The duty arises where the employer knows, or ought reasonably to know, that an employee has a functional limitation impacting their work.

Once the employer is aware of the functional limitation, the employer is obliged to make workplace adjustments within reasonable limits to accommodate the employee’s needs. Such adjustments may include modifications to the workplace, equipment, flexible working arrangements such as part-time work or remote work, additional breaks or other practical adjustments

When assessing what constitutes a reasonable adjustment factor, the availability of public financial support, the cost of the adjustments, the size and financial resources of the undertaking, and the practical feasibility of implementing the adjustments in the workplace are taken into account. However, the employer is not obliged to hire, promote, or continue to employ a person who is not competent, capable, or available to perform the essential functions of the position.

Once an employer has knowledge of an employee’s disability they are obliged to make reasonable adjustments to support the employee if the employee is disadvantaged as a result of their disability. Again, employers should be aware that having constructive knowledge of a disability will trigger the requirement to make reasonable adjustments, even if an employee has not expressly disclosed a disability. In this regard, where an employee requires support from their employer due to their disability, it is usually beneficial for them to bring any disabilities (including hidden disabilities) to their employer’s attention.

The requirements for employers in terms of making reasonable adjustments will look different in each case. Common examples of adjustments that could be reasonable for employers to make in respect of hidden disabilities include providing information in a different (more accessible) format, altering working times/patterns, allowing working from home, and providing or modifying equipment. Employers are only required to make adjustments insofar as they are reasonable and, in this regard, a tribunal would usually consider, amongst other things, the extent to which the adjustment would actually be effective to ameliorate any disadvantage suffered by the disabled employee, the costs involved in making the adjustments, the practicalities of making adjustments, and the resources of the employer. Furthermore, reasonable adjustments for an employee with a hidden disability must not only be made but also maintained. If a support plan is put in place, an employer must stick to this or arrange a suitable alternative. As ever, once an employer becomes aware of a disability they should be careful to avoid treating the employee any less favourably than non-disabled employees or making inappropriate comments in relation to the employee’s disability.

3. How do employers’ confidentiality and data-protection obligations affect the handling of employees’ health information?

DENMARK

Information about an employee’s hidden disability constitutes health information and health information constitutes a special category of personal data, cf. article 9 of the GDPR.

Under article 9(1) of the GDPR, special categories of personal data must not be processed unless an exception can be identified, either under article 9(2) of the GDPR or in provisions implementing article 9, and where there is also a lawful basis for processing under Article 6. Section 7 of the Danish Data Protection Act complements these provisions, allowing processing of such information where necessary for the employer to comply with employment-related obligations or to exercise specific rights. This may include, for instance, processing necessary to implement reasonable accommodations in the workplace.

Health data includes any data relating to a disability and is classed as ‘special category’ data for data protection purposes.

Employers handling employee health data must follow strict UK GDPR and Data Protection Act 2018 rules, treating such information as highly sensitive and justifying its collection with both a lawful basis under Article 6 and a special category condition under Article 9. They are required to limit the data they gather, ensure transparency about why and how it is used, apply core data protection principles such as minimisation, confidentiality and purpose limitation, and maintain robust governance and security measures. ICO guidance also stresses avoiding reliance on employee consent due to power imbalances and highlights the need for clear justification in scenarios like sickness management, health monitoring and medical testing.

4. What protections and complaint mechanisms do employees with hidden disabilities have against discrimination or dismissal?

DENMARK

Employees with hidden disabilities are protected under the Danish Anti-discrimination Act against dismissal or other adverse treatment based on such a condition. The employee bears the initial burden of proving that a hidden disability exists in the form of a functional limitation. This requires a specific assessment of the disability in relation to the performance of the work, as the disability must create limitations or difficulties in carrying out the job.

Once such a disability has been established, the employer is subject to a duty to provide reasonable accommodation under section 2a of the Act, including an extended obligation to consider reassignment to another position.

If an employer discriminates against or dismisses an employee with a hidden disability without objective justification, the employee may be awarded compensation under section 7 of the Act. There is no statutory upper limit on the amount of compensation. In determining the amount, emphasis is placed on the seriousness of the conduct, the background of the case, and the nature of the infringement. As a general starting point, compensation is typically set at six months’ salary in cases of short seniority, nine months’ salary for employees with a couple of years employment, and twelve months’ salary for employees with long seniority.

Employees with hidden disabilities have the same legal protection as those with visible disabilities. Under the Equality Act 2010, disability is a protected characteristic, and employees are protected from direct and indirect discrimination, harassment and victimisation. It is also unlawful to treat an employee unfavourably because of something arising from their disability, for example behaviours exhibited due to their disability, unless the treatment can be objectively justified. An employer must not cause detriment to any prospective, current or former employee because of a disability (whether hidden or visible), or because of something arising in consequence of disability. This includes, for example, withdrawing a job offer, overlooking someone for promotion or managing performance without taking the effects of a hidden condition into account.

Employers must actively consider and implement appropriate adjustments before taking decisions on performance management or dismissal. Dismissal because of a disability can be both discriminatory and unfair. If an employer dismisses a disabled employee for performance, conduct or sick leave issues without considering reasonable adjustments and medical evidence, the dismissal may be unlawful. Navigating hidden disabilities in the workplace is an ongoing responsibility that requires awareness, empathy and proactive compliance with the law, ensuring that every employee can work with dignity, fairness and the right support in place.

An employee who feels they have been mistreated should first exercise their organisation’s internal processes. This could consist of meetings with HR or raising a grievance. If this does not resolve the matter and rectify any wrongful behaviour, an employee can bring an employment tribunal claim for discrimination or failure to make reasonable adjustments. An employee with a hidden disability has the same legal standing to bring a claim as an employee with a visible disability. In practice, however, as the burden of proof in establishing the presence of a disability is on the claimant, this may be more challenging for someone with a hidden disability. Compensation for discrimination is uncapped and as well as compensation for financial losses an employee is likely to be awarded compensation for injury to feelings.

AUTHORS

Mads Bernstorn specializes in labor and employment law as well as data protection law. Mads Bernstorn provides advice to both Danish and foreign companies on employee and executive matters and has particular experience in advising companies in the financial sector.

Among other things, Mads Bernstorn has assisted companies in connection with the development of incentive schemes, the drafting of data protection policies, negotiations in connection with departures, etc. In addition, Mads Bernstorn also provides advice on residence and work permits for foreign employees.

Oliver Calcott works with employers and employees across a broad range of employment matters. He has experience advising on employment tribunal claims, including worker status and whistleblowing claims, as well as supporting organisations with workplace policies and procedures.

Oliver also regularly advises both employers and employees on settlement agreements, taking a pragmatic approach to negotiated exits and dispute resolution. His work is focused on providing straightforward, solutionsâdriven advice tailored to each client’s circumstances.

He provides clear, practical advice and supports clients through both contentious and nonâcontentious matters, helping them manage risk and resolve workplace issues effectively.