Dyslexia and The Duty to Make Reasonable Adjustment 12 July 2016 Dyslexia and The Duty to Make Reasonable Adjustment

Overview Focus on the duty to make a reasonable adjustment Look at: Definition of disability under the Equality Act (EqA) 2010 Duty to make reasonable adjustment What is a PCP, physical feature, auxiliary aid? How does that put a person with dyslexia at a substantial disadvantage? What adjustments are reasonable for the employer to make? In this session I will focus on the legal duty to make reasonable adjustments and how that applies to workers who have dyslexia. I will start by looking at how dyslexia falls within the definition of disability since the duty to make a reasonable adjustment only applies to those who have a disability as defined under the Equality Act. I will then look at when the duty to make a reasonable adjustment applies and what adjustments are likely to be reasonable.

How is disability defined? Section 6 EqA 2010 defines disability as: “A physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities.” The duty to make a reasonable adjustment applies where a worker has a disability as defined. Disability is defined in s.6 of the Equality Act 2010 (go through definition in the slide) Look at each aspect of the test (those sections in bold) and how that applies to those who have dyslexia.

How does the test apply to dyslexia? Physical or mental impairment No diagnosis not a barrier (Aderemi v London and South East Railway Limited UKEAT 0316/12) Physical Impairment (Nicklin v Vicky Martin Concessions Limited ET Case No: 2406032) Mental Impairment (British Dyslexia Association) Normal day to day activities Government guidance on matters to be taken into account when determining disability Includes activities relevant to professional Life (Paterson v Commissioner of Police for the Metropolis [2007] ICR 1522) Substantial adverse effect Focus on what a worker cannot do Disregard coping strategies Long term = 12 months Physical or mental impairment Dyslexia has been held by case law to be both a physical impairment and a mental impairment. In Nicklin the Employment Tribunal held that a shop assistant who is Dyslexic had a physical impairment because she found it difficult to carry out some of the tasks, for example, carrying out stock control. On the other hand the British Dyslexic Association defines dyslexia as a specific learning disability. The fact that an individual has not been diagnosed with dyslexia does not necessarily mean that they do not have a disability as defined. In that case, an Employment Tribunal consider what an individual cannot do because of either a physical or mental impairment. In Bid v HPMG LLP ET Case No: 1300313/09 an Employment Tribunal held that the employer should have made a reasonable adjustment until such time as it was established whether or not a trainee accountant had dyslexia. In Kelsey v Retail Merchant Services Ltd ET Case No: 1200908/10 the tribunal held in a case where the Claimant had dyslexia, he was disabled on the basis that he had difficulty reading and spelling and was unable to do things such as writing a short note which somebody of his ability, who did not have an impairment, would have been able to do easily. When considering what a worker cannot do, the tribunal will focus on normal day to day activities. The Government’s guidance on matters to be taken into account when determining disability gives a list of factors which they consider would be reasonable to regard as having a substantial adverse effect on normal day to day activities. Examples include, persistent and significant difficulty with reading, persistent difficulty remembering the spelling and meaning of words in common usage and considerable difficulty in following a short sequence such as a recipe. A tribunal can also take into account whether or not a worker with dyslexia cannot do activities which are relevant to their jobs. In the case of Paterson v Commission of Police for the Metropolis the Employment Appeal Tribunal held that normal day to day activities must be interpreted as including activities which are relevant to professional life. In that case, a police officer with dyslexia was required to undertake exams in order to be promoted. The tribunal held that taking high pressure exams in order to gain promotion amounted to normal day to day activities. The fact that the requirement to take exams was irregular did not prevent that requirement from amounting to a normal day to day activity. It will not normally be difficult to establish that dyslexia has a long term adverse effect even if it is undiagnosed as dyslexia will usually have been present from an early age. It is likely from the case law that dyslexia is likely to amount to a disability in the majority of cases.

When does the duty to make a reasonable adjustment apply? Applies where there is: (1) A provision, criterion or practice (PCP), physical feature or failure to provide an auxiliary aid (2) Which puts the disabled person at a substantial disadvantage (3) In comparison to a non-disabled person AND The employer knows or could reasonably be expected to know: A worker is disabled; and A worker is placed or is likely to be placed at a substantial disadvantaged Imputted knowledge on the employer eg: occupational health department (Gallop v Newport City Council [2013] EWCA Civ 1583 The duty to make a reasonable adjustment applies where a person with a disability is put at a substantial disadvantage by a provision, criterion or practice, physical feature and, as a result of the employer’s failure to provide an auxiliary aid such as computer equipment. In the context of a Dyslexic worker, they are more likely to be put at a substantial disadvantage by a PCP and a failure by the employer to provide an auxiliary aid. I will now look at how the test applies in more detail. It is important to point out that an employer is not under a duty to make reasonable adjustments unless it knows or can reasonably be expected to know that the worker has a disability as defined under the Equality Act AND the worker is placed or is likely to be placed at a substantial disadvantage because of a PCP, physical feature or failure to provide an axillary aid. An employer is expected to take reasonable steps to find out if the disabled worker has a disability. In particular, the Equality and Human Rights Commissions Employment Code states that employers must “do all they can reasonably be expected to”. This means that, where a worker has difficulty following instructions or, writing reports with various spelling errors an employer will be expected to do all it reasonably can, to establish whether or not this is because the person has dyslexia. This will include, for example, referral to occupational health or seeking specialist advice and guidance. Where the employer refers a worker to occupational health, a word of warning. An employer cannot just rely on the view of occupational health where occupational health make a diagnosis that the individual does not have a disability, which in this case, would be dyslexia. In particular, the Court of Appeal held in the case of Gallop that an employer cannot just blindly follow the advice of occupational health where occupational health made an assessment that the person does not have a disability. The employer must consider for themselves (based on the facts of the employee’s particular circumstances) whether they consider that they have a disability. Having said this, where occupational health is of the view that the worker has a disability then the Courts consider it is reasonable for the employer to rely on the guidance of occupational health. The best advice is for employers to err on the side of caution and in doing so consider what reasonable adjustments may be available. The exception is where the employer refers a worker to a counselling service which is provided by an outside agency and is independent on the employer. In that case, the courts will not regard any view given by the independent counselling service as one which is held by the employer (imputed knowledge).

What is the PCP? Formal/informal policies, practices and procedures eg: redundancy policy, trigger points in the sickness absence policy (Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265) Broad definition What is key is that the PCP puts the worker with dyslexia at a substantial disadvantage. Some examples: A requirement to carry out the full duties of the job Completing a duty rota in an accurate manner and good time – Kumulchew v Starbucks Coffee Company Limited ET Case No: 2301217/14 Requirement to provide the 250 word statement in support of an application for promotion – Haynes v Chief Constable of Gloucestershire Constabulary ET Case No: 1400859/08 Requirement to sign disciplinary and grievance minutes at the end of a meeting. A PCP can be identified by the disadvantage it creates for a person with a disability. So, for example, where an employee with a disability has more absences because of their disability, they may be more likely to trigger the formal procedures under a sickness absence policy than those who do not have a disability. In that case the disadvantage to the worker is being subject to formal procedures caused by the triggers under the sickness absence policy. In that case, it could be reasonable adjustment to adjust the triggers under the Sickness Absence Policy or procedure so that the disabled person is less likely to be at risk of formal procedures as a result of their absence due to disability. Some examples of a PCP which have been held by tribunals to apply to a Dyslexic worker include: A requirement to undertake the full duties of the job. For example, in Kumulchew the tribunal held that completing a duty rota in an accurate manner and in good time placed the worker with dyslexia at a disadvantage because they would find it more difficult to complete the task accurately. In that case, the Dyslexic worker suffered a disadvantage as a consequence of being referred to a disciplinary hearing for failing to complete the duty rota accurately. A requirement to complete a statement in 250 words as part of a job application. In Haynes v Chief Constable of Gloucestershire Constabulary the employer required a Dyslexic police officer to set out in 250 words why he should be promoted. An Employment Tribunal held that this put the police officer at a disadvantage in comparison to a person who did not have dyslexia. A requirement to sign disciplinary and grievance minutes at the end of each meeting. In Kumulchew the Tribunal held that this put the Dyslexic worker at a disadvantage in comparison to a non-disabled worker because she needed more time to read and understand a written document and the stress made the task more difficult. As we saw in the case of Bid v KPMG LLP ET Case No: 1300313/09 when the worker had not had a diagnosis of dyslexia, it can be a reasonable adjustment for an employer to avoid applying the PCP to allow for time to find out whether or not a person has dyslexia.

What adjustments are reasonable? Factors to be taken into account (EHRC Code on Employment) Does the step have a prospect of removing the disadvantage? Is it practicable? Are there financial or other costs involved? Size and type of employer. Whether an adjustment is reasonable will depend on whether there is a prospect that an adjustment will remove the disadvantage. It does not actually have to remove the disadvantage. So, for example, in Noor v Foreign and Commonwealth Office UK EAT 0470/10 a case involving a job applicant who is dyslexic who was asked a question in her interview about a competency that was not in a job advertisement. He argued that he should have been given a second interview. The employer argued that even if he had been given a second interview he still would not have been appointed. The Employment Appeal Tribunal held that there had been a failure to make a reasonable adjustment because he had been subject to a substantial disadvantage from the arrangements for the interview. It can be seen from this case that the purpose of a reasonable adjustment is to create a level playing field. In this case the adjustment was necessary as a candidate with dyslexia would be less able to address a question which was not apparent from the advert than a candidate who was not dyslexic. The requirement to provide a second interview was one that was both practicable and achievable. In most cases, adjustments are not costly. In Huskisson v Abbey National Plc ET Case No: 500944/2000, the dyslexic worker encountered difficulties when conducting interviews and tailoring product knowledge to suit customer needs. He notified his employer that he thought these difficulties were caused by his dyslexia. The employer thought that training would be of no use and, therefore, dismissed him. The Employment Tribunal found that the problems he experienced during his training had been predicted by the employee’s own psychologist. Unfortunately, the employer had not considered obtaining further advice as to whether the difficulties he encountered in carrying out his job were linked to his dyslexia. The Employment Tribunal found that the employer had failed to make a reasonable adjustment such as providing an electronic organiser, supervision and allowing him more time. Where there is a cost, employers can benefit from the Government’s Access to Work scheme which can provide financial assistance such as towards the cost of computer hardware or software. Where the employer has considerable resources, this will be taken into account when assessing what adjustments are reasonable. It is also important to note that some adjustments may not be reasonable because they do not have the prospect of reducing the disadvantage. So, for example, a failure to carry out a risk assessment by itself will not amount to a failure to make a reasonable adjustment because the risk assessment will not usually amount to a reasonable adjustment because it does not necessarily address the disadvantage that the disabled worker is subject to. However, if a risk assessment is not carried out and, as a result, an adjustment is not identified an employer may be at risk if it does not consider whether there are any adjustments it could make. Ultimately, whether an adjustment is reasonable will depend on the circumstances of the individual case and claims can be avoided where both the employer and employee engage in a dialogue. Where the worker has dyslexia, the employer, Union Representative and the worker can all usefully meet to discuss what it is about the work that puts the Dyslexic worker at a disadvantage and what adjustments can be made to enable the worker to continue in their job. In most cases, the cost of an adjustment is very small compared with the benefits. Furthermore, engaging workers and CSP reps will create a more positive working environment for all workers, not just those who have dyslexia.

What happens if a reasonable adjustment is not made? Lodge a grievance (ACAS Code of Practice) ET claim – time limit - 3 months less 1 day from when a reasonable employer would have made the adjustment Early conciliation Tribunal remedies Declaration Compensation – injury to feelings award Low £550 - £6600 Middle £6,600 - £19,800 Upper £19,800 - £33,000 Recommendation Where employers and workers engage in a dialogue to assist workers with dyslexia in the work place to carry out their job then there should be no need to pursue the matter further. However, where an employer does fail to make a reasonable adjustment, the worker should lodge a grievance as this is a requirement of the ACAS Code of Practice. Lodging proceedings should be a last resort. Nevertheless, it is important to be aware of the time limits for lodging a tribunal claim in order to protect worker’s right to bring a claim in the event that the matter is not resolved in the workplace. The time limit for lodging a claim in an Employment Tribunal is 3 months less 1 day from when a reasonable employer would have made the adjustment. As can be seen when a reasonable employer would have made the adjustment can create some uncertainty. We therefore advise that if an employer does not respond to a request to make a reasonable adjustment after 2 weeks, the worker should lodge a grievance and request that the matter be dealt with in accordance with the grievance procedure. The time limit for lodging a tribunal claim should be treated as running from 2 weeks after the request has been made. We realise that this is a cautious approach but we cannot risk jeopardising a worker’s right to bring a claim in an Employment Tribunal in the event that the matter remains unresolved. There is also a requirement to begin early conciliation before the tribunal proceedings are lodged. This means that a worker must contact ACAS before they lodge an Employment Tribunal claim. Early conciliation provides another opportunity for the worker, employer and their union representative to discuss how to resolve a request for a reasonable adjustment without the need for legal proceedings to be lodged. We encourage employers and workers to engage in this process. Where matters proceed to an Employment Tribunals these can be both traumatic for the worker and costly for the employer and, for that reason, we consider tribunal proceedings to be the absolute last resort.

Conclusion Key points to avoiding an Employment Tribunal claim consider: What is it that puts the worker with dyslexia at a disadvantage? Are there adjustments that would remove that disadvantage? Are adjustments reasonable and practicable? Sending guidance and assistance from others such as occupational health, specialists of psychologists, the British Dyslexia Association and Access to Work. Some key points for avoiding an ET claim

Further information LELR on-line www.Thompsons.law.co.uk