A police officer who suffered from dyslexia and was disadvantaged when carrying out examinations for promotion was disabled within the meaning of the Disability Discrimination Act 1995 (DDA). In this case, the Employment Appeal Tribunal (EAT) found that promotion assessments and examinations are “normal day-to-day activities” for the purposes of defining disability under the DDA.
After many years’ service with the police, during which he rose up the ranks to chief inspector, Paterson discovered that he was dyslexic. He had previously performed his role well, had coped with complex paperwork, taken various exams and carried out many managerial functions without any awareness of his condition.
Paterson wished to be promoted to superintendent, which involved completing a promotion assessment. He argued that he was disabled and brought proceedings claiming that the police had failed to make reasonable adjustments in relation to his promotion application and that he had been discriminated against for a reason related to his disability.
The tribunal accepted that Paterson suffered from dyslexia, but found that the condition had no impairment on his day-to-day activities. It found that he could clearly write high-level reports and accounts and that there was no effect on his day-to-day activities. The tribunal’s view was that promotion assessments were not a day-to-day activity.
While the tribunal did find that Paterson was at a substantial disadvantage compared to his work colleagues with respect to carrying out promotion examination and assessments, it said that such disadvantages did not render him disabled, and could be compensated for by good industrial practice.
The EAT disagreed. It said that where an individual suffers a substantial disadvantage because of the effects of a disability in promotion or assessment procedures, those effects must involve a substantial effect on the ability to carry out normal day-to-day activities. The tribunal’s role is not to compare the employee’s performance with the average person, but to look at what the individual would be able to do if they were not impaired.
Paterson argued that high pressure exams or assessments were a usual, if irregular, everyday activity, and that he suffered from a deficit in reading and comprehension skills, which were a day-to-day activity. In support of his argument, he referred to the case of Chacon Navas v Eurest Colectividades SA, in which the European Court of Justice defined the concept of disability and envisaged protection extending to “situations in which participation in professional life is hindered over a long period of time”.
The EAT’s view was that carrying out an assessment or examination is a normal day-to-day activity. Normal activities must encompass the activities that are relevant to participation in professional life. The EAT therefore found that Paterson was disabled, and remitted the case to the tribunal to decide the claim on its merits.
- A person has a disability under the DDA if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
- Dyslexia can constitute a disability if it has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
- These activities do not include work of a particular form, but can include promotion assessments and examinations as these are normal, if irregular, activities.
- When assessing the effect of a disability, the comparison is not with the population at large, but with the way in which the individual would carry out the activity if not impaired.
What you should do
- Make reasonable adjustments to ensure that no provision, criterion, or practices or any physical features at work put disabled staff at a substantial disadvantage compared with non-disabled employees.
- Be aware this duty can be triggered if an employee has an impairment, including dyslexia, that has a substantial and long-term effect on the ability to undergo promotion examinations or assessments.