Why should OH practitioners look at employees who suffer from information-processing disorders? These are conditions that affect people who might be intelligent and knowledgeable, but whose brains lock information in and do not let it out at the time it is needed.
The result could be dyslexia, or it could be Attention Deficit Hyperactivity Disorder (ADHD). This is an umbrella title for a combination of types of behaviour including inattention, hyperactivity and impulsiveness.
ADHD is commonly thought of as a childhood syndrome, but when it extends into adulthood, the criteria is consistent with disability. This means adults seeking employment or already in a job are likely to be protected by the Disability Discrimination Act 1995 (DDA). This makes it unlawful to discriminate against a person on the grounds of disability, defined as a physical or mental impairment which has a substantial and long-term effect on a person’s ability to carry out their normal day-to-day activities. Legal battles have raged about the ingredients of that definition since the Act came into force.
The DDA brings all forms of disability into a wider context, not limited to the obvious signs of crutches or wheelchairs. Employers are required by law to take account of disability in all stages of the recruitment process, job offers, training and promotion and fairness in disciplinary and capability procedures during the course of the employee’s career.
Although it is convenient to have a formal diagnosis of a condition, save for progressive conditions such as cancer, the DDA is not concerned with specific illnesses or syndromes: it is concerned with effect rather than the cause. So, where there is a condition such as ADHD, the problem lies not with the label, but the effect on the employee’s ability to carry out the all-important regular day-to-day activities.
It is a question of degree a person whose concentration is severely limited may not be able to carry out a day’s work, whether it is because they are suffering from acute anxiety, chronic depression or ADHD. However, under the DDA, employers are required to consider whether the employee could do the job if the employer were to make ‘reasonable adjustments’ to their work.
Dealing with reasonable adjustments can be a complex process. Dyslexia, an example familiar to the tribunals, may exist in its own right. It can also occur as one of the signs of ADHD. It is known as a persistent condition affecting the learning process in reading, spelling and/or writing and numeracy. It is associated with difficulties in concentration, and may result in poor time management or other organisational skills. Many individuals develop coping strategies but, in the absence of a diagnosis, may be at a very real disadvantage in the workplace.
What the employer sees as slipshod work, poor timekeeping, or failure to remember instructions may be the result of dyslexia or some other, similar or related condition, which might be deemed a disability under the DDA. If the disability is not recognised by the employer, the standards of the employee’s work may put them at risk of dismissal on the grounds of capability – a potentially fair reason under the Employment Rights Act 1996. If they persistently fail to follow instructions, that may be deemed to be misconduct: again, a potentially fair reason for dismissal.
For reasonable adjustments to be made to enable the employee to cope, the need has to be perceived by the employer. Awareness of information-processing disorders may lead to a referral for an occupational health opinion so that a clinical view can be taken of the overall behavioural pattern. The condition may not have been diagnosed prior to the occupational health consultation, but dyslexia is, after all, named as a condition in the World Health Organisation’s International Classification of Diseases, ICD-10, and has been recognised by employment tribunals as being capable of constituting an impairment under the DDA. The fact that an employer is on notice that the member of staff is dyslexic, meaning that the employee has shown evidence of a disability, does not necessarily mean a tribunal will view the condition as a disability under the DDA, as this will always involve a judgment of whether the effect of the condition is of such severity as to amount to a disability.
If the nature of the disability makes the employer subject to the duty to make reasonable adjustments, the employer must consider what these should be. For example, if a dyslexic job applicant’s condition is exacerbated under the sort of stress that arises when the selection process involves the use of writing skills, the employer could allow more time for any test to be done. It would be reasonable from the employer’s point of view for the job applicant to request the specific disability-related adjustment needed.
It is not discriminatory for the employer to ask for evidence that the impairment amounts to a disability. The guidance to the Act helps employers come to a conclusion as to whether to treat the employee or job applicant as disabled but, in the light of recent case law, employers must consider the very close link between the day-to-day activities of work (which are not considered by the Act) and those of everyday life (which are considered by the Act).
Sometimes, with the best will in the world, there are no adjustments that can be made to enable a person to compete for or secure an appointment. It may be that a condition prevents an individual from securing necessary qualifications. The employer can review the job specification and assess whether it actually requires a certain level of academic achievement when, in practice, a lesser level will suffice. But if it will not, the necessary level of competence cannot be varied.
An example quoted in the guidance indicates that asking for a particular number of GCSEs may be a useful tool for the employer to ascertain on paper whether someone is capable of carrying out the variety of tasks envisaged by a particular position. However, if the qualifications are general rather than specific, it might be a reasonable adjustment to vary the academic requirements to reflect the job tasks or to consider a wider spectrum of candidates with lesser qualifications, but who might be able to do what is actually required. This opens the area to those who might have had difficulty with achieving formal qualifications through a disabling condition.
When it comes to getting the necessary qualifications, a dyslexic may need nothing more than more time to cope with the problems of concentration and co-ordination. A line must be drawn on the level of support offered: in some situations, it may be reasonable to allow a person to use a computer instead of writing by hand, but if writing by hand were to be a crucial feature of the job, it would be a pointless exercise to avoid demonstrating the very skill required.
Disabled or not?
Before making adjustments, the employer has to be aware that they are dealing with a person who is disabled within the meaning of the Act. The question of disability relates not to the difficulties a person may encounter with the work they are employed to do, although those may be significant, but to whether or not there is an impairment of their ability to carry out normal day-to-day activities. When there is an overlap, the employer needs to consider making reasonable adjustments. When that fails, as in circumstances where the employee is not able to cope with the job despite additional training, support and extended time provisions, it may be fair to dismiss on the grounds of capability.
- Holmes v Bolton Metropolitan Council (1998):
The employment tribunal held that Holmes, a dyslexic, was disabled within the meaning of the DDA because his difficulties with reading, writing and arithmetic had a profound effect on his normal day-to-day activities, although he could understand and carry out psychological tests involving non-verbal reasoning and verbal fluency.
- Woodhouse v Leeds General Infirmary (1998):
The employer arranged for Woodhouse’s application for the post of occupational therapy assistant to be made on a typed rather than written application to accommodate the fact that he was dyslexic and cerebral palsy had affected the motor function of one of his hands. Leeds General Infirmary’s subsequent failure to transfer the application details to its prescribed form put Woodhouse at a disadvantage, in that it failed to make the reasonable adjustment in relation to data transfer.
- Huskisson v Abbey National (2000):
Huskisson was unable to deal with the communication aspects of his work, despite concluding a period of training. He suggested to Abbey National that the difficulties might be related to dyslexia. Abbey National concluded that Huskisson was not capable of doing the work and further training would not be productive. His complaint of disability discrimination was upheld in the employment tribunal. His expert witness confirmed dyslexia, and the employer had never sought medical opinion to consider whether he suffered from such a condition, nor had it given consideration to the simple expedients of increased supervision and additional electronic equipment.
- Paterson v Commissioner of Police of the Metropolis (2007) IRLR 763:
Paterson, a chief inspector, learned in 2004 that he was dyslexic. He brought a disability claim against the Commissioner of the Metropolis on the basis that no reasonable adjustments were made for him by allowing extra time in his promotion exams. The Employment Appeal Tribunal (EAT) overturned the employment tribunal’s decision that he did not fall within the definition of disability because the adverse effects of his impairment on his normal day-to-day activities were minor. Taking the exam was held by the employment tribunal not to be a normal day-to-day activity. The EAT said that it was. Day-to-day activities must be understood as those “which encompass the activities which are relevant to participation in professional life”.
Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn, London. Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.
Any enquiry about this article may be made to Joan Lewis at [email protected] Telephone 020 8943 0393.