12 July 2016 Dyslexia and The Duty to Make Reasonable Adjustment

1. 12 July 2016 Dyslexia and The Duty to Make Reasonable Adjustment

2. 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?

3. How is disability defined? Section 6 EqA 2010 defines disability as: “A physical or mental impairment which has a substantial and longterm adverse effect on a person’s ability to carry out normal day to day activities.”

4. 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

5. 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] EWCACiv 1583

6. 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.

7. 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.

8. 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

9. 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.

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