Open-access content 28th April 2016
5 May 2016 | By Daniel Wilde
Organisations could be liable for discrimination claims if they fail to make reasonable adjustments for employees with dyslexia, says Daniel Wilde.
Dyslexia can be a disability under the Equality Act 2010. A disability under this act is a physical or mental impairment that affects a person's ability to carry out normal day-to-day activities. The adverse effect must be substantial and long term.
In most cases, dyslexia will count as a long-term physical or mental impairment, so the issue is whether the impact of dyslexia on each person is severe enough to have a substantial adverse effect on that person's normal day-to-day activities.
Losing a discrimination case can result in adverse publicity to an organisation, as Starbucks found when one of its employees won a disability discrimination case based on dyslexia. Starbucks disciplined its employee, who was dyslexic, for falsifying documents after data was entered wrongly on a form. An employment tribunal found that the employee had been discriminated against after making mistakes because of her difficulties with reading, writing and telling the time. Although a financial award will be made against Starbucks, the coverage of the case in the media will be of equal concern.
The case does not set a legal precedent, but employers need to be aware of how to address dyslexia. The British Dyslexia Association estimates that one in 10 people have dyslexia to some degree, even though some may not be formally diagnosed.
The duty to make reasonable adjustments aims to make sure that as a disabled person, an employee, as far as is reasonable, has the same access to everything that is involved in doing the job as a non-disabled person. An employer is under a positive and proactive duty to take steps to remove, reduce or prevent obstacles that an employee faces as a result of his/her disability. This duty can include changing the way things are done, making changes to overcome barriers created by the physical features of a workplace, or providing extra equipment or help to assist the disabled person.
What is reasonable?
Various factors influence whether a particular adjustment is considered reasonable. The test of what is reasonable is ultimately an objective test and not simply a matter of what the employee or employer thinks is reasonable. When deciding if an adjustment is reasonable, an employer can consider:
- How effective the change will be in avoiding the disadvantage that the client would otherwise experience;
- Its practicalities;
- The cost;
- The organisation's resources and size; and
- The availability of financial support.
Types of adjustments
Most employees suffering from dyslexia are likely to have some difficulties, including writing and/or interpreting information. Specific adjustments could include:
- Publishing company-wide information in alternative formats, such as audio files or large print;
- Enabling the staff to have a choice of coloured backgrounds, overlays and fonts,
- Creating the right workforce environment;
- Possibly providing specialist one-to-one training for dyslexic employees, such as time management, organisational skills and concentration for memory improvement techniques;
- Considering assistive technology and software, such as voice recognition and work prediction software; and
- Considering proofreading options.
These examples are a guideline only, and each case must be looked at in the context of an individual's particular difficulties.
When does the duty arise?
The duty arises at all stages during the employment relationship, from pre-recruitment through to circumstances in which employers are considering disciplinary action. In the Starbucks case, the employee was disciplined for falsifying information when the discrepancies in data arose in consequence of the employee's difficulties with words and numbers. In this case, the employee complained that she wanted more time to be able to get familiar with the task, and someone to check her work. These adjustments were not made.
Adaptive software might cost money - do you need to make the adjustments? Potentially, yes. The duty to make reasonable adjustments takes into account the size and resources of the employer, but generally it would be expected that the cost of low-cost adjustments would be met by the employer. In some circumstances, financial support can be provided by the Access to Work Teams at the DWP.
Employers should ensure that disabled employees are provided with reasonable support in the workplace. Working practices, policies and procedures should be reviewed so that employees know how to seek support and managers know how to respond to such requests. This will help avoid costly tribunal claims.
Daniel Wilde is partner and head of employment at HardingEvans LLP