As we mark the end of Dyslexia Awareness Week (2nd – 8th of October) and the beginning of Dyspraxia Awareness Week (9th – 15th of October), we note the importance of recognising disabilities within the workplace and the duty to make reasonable adjustments.
The NHS estimates that up to 1 in every 10 people in the UK has some degree of dyslexia and, according to the Foundation for People with Learning Disabilities, dyspraxia affects up to 6% of the population with up to 2% being severely affected.
Dyslexia symptoms can include difficulty reading, writing, understanding sequences of directions and struggling to plan and organise. Dyspraxia symptoms can include difficulty with co-ordination, writing, learning new skills, time management and planning.
Definition of disability
Under the Equality Act 2010, an individual is disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to carry out normal daily activities. Depending on the severity of symptoms, conditions such as dyspraxia and dyslexia may fall within this definition.
Who does the duty apply to?
Employers’ duty to make reasonable adjustments applies to disabled:
- job applicants;
- employees/workers and contractors; and
- some self-employed people hired to personally do the work.
When does the duty arise?
There are three different situations in which the duty to make reasonable adjustments arises.
Provision, criterion, or practice (“PCP”)
A PCP can be almost anything, and includes formal and informal policies, rules, one-off decisions and actions. Simply put, an employer is under a duty to change the way things are done if they are putting a disabled person at a substantial disadvantage compared with a non-disabled person.
Only issuing written instructions to staff could amount to a PCP and if that puts a dyslexic member of staff at a disadvantage, a reasonable adjustment might be to issue instructions both in writing and verbally.
If a physical feature of the employer’s premises is putting a disabled person at a substantial disadvantage compared with a non-disabled person, then the duty to make reasonable adjustments arises.
For example, if a person in a wheelchair cannot access a building, the employer is under duty to make reasonable adjustments.
Provision of an Auxiliary Aid
If a disabled person requires an auxiliary aid and/or service to overcome a substantial disadvantage they experience (when compared with non-disabled persons), then a duty to reasonably provide that aid or service arises.
For example, if a disabled employee struggles to read, an employer may need to provide screen reading software.
Knowledge of disability and substantial disadvantage
However, employers are only expected to make reasonable adjustments if they know or reasonably ought to know that someone is disabled and experiencing a substantial disadvantage as a result. For this reason, if reasonable adjustments are needed an employee would be wise to make this known to their employer. However, just because someone has not disclosed their disability does not mean that the duty to provide reasonable adjustments is foregone. If there are any circumstances which mean the employer reasonably ought to have known that someone is disabled and suffering a disadvantage, then the duty to provide reasonable adjustments arises. In the context of dyslexia or dyspraxia this might be a manager noticing an employee struggling with aspects of their role.
Meaning of “reasonable”
What is deemed as “reasonable” will depend on several factors. Overall, an adjustment will likely be deemed reasonable if it genuinely addresses the disadvantage, is practical to make, comes at a reasonable cost (considering the employer’s financial and other resources) and does not affect the health and safety of others.
The following cases effectively illustrate how the duty to make reasonable adjustments can arise.
AECOM Ltd v Mallon
A job applicant with dyspraxia was required to create an online profile and complete an online application form. His condition meant that he struggled with these tasks, and he asked (via email) to submit an oral application instead. When AECOM Ltd responded (also by email) asking which parts of the form he was struggling with he did not repose directly and simply reiterated his request to submit an application orally. The Employment Tribunal, with whom the Employment Appeal Tribunal agreed, found it would have been a reasonable adjustment for AECOM to telephone Mr Mallon in order to understand the situation better.
Jandu v Marks and Spencer Plc
Ms Jandu, a dyslexic employee, was at risk of redundancy along with others. To select which employees to make redundant, Marks and Spencer applied performance related selection criteria to all at risk but without considering that Ms Jandu’s performance was affected by her dyslexia. Instead, the effects of Ms Jandu’s condition saw her marked down for “rushing” and “inaccuracies” and she was ultimately dismissed. The Employment Tribunal held that it would have been reasonable for Marks and Spencer to discount any disability related effects when applying the redundancy selection criteria and that the failure to do so amounted to a failure to make reasonable adjustments.
Whilst not related to dyslexia or dyspraxia, this case is a useful reminder of the steps employers will need to go through when adjusting an employee’s duties in light of a disability. In this case, Mrs Lynskey’s performance at work had suffered because of symptoms caused by menopause. This resulted in a written warning following a disciplinary process. The Tribunal held that the requirement to meet the performance standards of her role was a PCP that put Ms Lynskey at a substantial disadvantage compared with a non-disabled person. Whilst her employer had made other reasonable adjustments such as moving her to a less-challenging role, providing additional training, counselling and menopause advice sessions and referring her to occupational health, they had not gone far enough. Specifically, the performance procedure should have been abandoned, her targets lowered and a move to a different role should have been considered.
Dyslexia and dyspraxia
Whilst the appropriate reasonable adjustments in each case will be dependent on the individual’s condition and requirements, some examples of reasonable adjustments which could assist those suffering with dyslexia and dyspraxia include:
- Using visuals with colour coding and symbols as opposed to words.
- Allowing extra time to complete certain tasks.
- Providing assistive software on computer systems.
We also list below some general points to remember when dealing with disabled employees:
- not all disabilities will be immediately evident;
- a PCP, physical feature or lack of auxiliary aid that puts an employee at a disadvantage due to their disability should be reasonably adjusted for;
- employer and employee communications are key to understanding what reasonable adjustments will suit a particular scenario;
- employers should consider all reasonable options open to them to assist a disabled employee. If a request is unreasonable, employers should try find alternative reasonable options; and
- where a request is deemed to be unreasonable, an employer should take care to document their rationale at the time and keep appropriate records. These could be invaluable if a claim is later issued!