When is a learning difficulty actually a disability?
To be protected under the Disability Discrimination Act 1995 (DDA), a disabled person must have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities. In Dunham v Ashford Windows , the Employment Appeal Tribunal (EAT) had to decide whether Mr Dunham’s ‘generalised’ learning disability was a mental impairment. The EAT decided that it was.
Dunham was a forklift truck driver and yardman who was dismissed three months into a new job. He argued that this was disability discrimination and that his employer had failed to make reasonable adjustments. Dunham claimed he was disabled because he had “severe reading and writing difficulties” and a psychologist’s report confirmed this. It identified weaknesses in Dunham’s memory and his ability to organise and use his initiative, and linked these to his learning difficulties. The case was unusual because Dunham was not affected in just one skills area, as is the case with dyslexia and reading, but in a number of areas.
The DDA states that a mental impairment includes clinically well-recognised mental illnesses. There have been numerous cases on whether particular mental illnesses are covered by the DDA, but there is less authority on whether someone who does not have a mental illness nevertheless has a mental impairment, which is why Dunham is important.
It was accepted that Dunham did not have a mental illness, so the EAT had to decide whether he had a mental impairment. It concluded that in this type of case, an employee would need expert evidence confirming they had a specific condition. Staff cannot claim DDA protection because of difficulties at school or by saying they are not very bright.
In the key part of the judgment, the EAT said that as well as protecting disabled staff whose learning disabilities affect one function, employees will also be protected if, like Dunham, their learning disability has a generalised effect on a range of functions.
So what does this decision mean for employers? This case effectively widens the scope of the DDA in relation to staff (and job applicants) with learning disabilities. Under the DDA, an employer must make reasonable adjustments where any physical feature of their premises, or where a “provision, criterion or practice” (PCP) puts a particular disabled employee (or a job applicant) at a substantial disadvantage in comparison with able-bodied staff.
PCPs are central to the duty to make reasonable adjustments. Anything from recruitment procedures to terms and conditions of employment, training, and standard employment policies and procedures can be a PCP. Whether it is reasonable for an employer to make a particular adjustment will depend on each case, but Dunham highlights the importance of ensuring you comply with this obligation to staff with learning disabilities.
Learning points for HR
Recruitment and promotion:
- Ensure selection and recruitment materials are accessible to people with learning disabilities
- Ask candidates if they require any reasonable adjustments and act on what you are told
- Consider accepting applications in different formats, such as by telephone, audio tape or practical instead of written tests
- Do not insist on formal qualifications where these are not necessary to perform a role
- Allow more time to complete tests or interviews
- Review training methods and modify if necessary – for example, by including pictures or conveying instructions orally
- Consider whether you need to make reasonable adjustments to general policies and procedures, such as disciplinary and grievance procedures, when applying them to staff with learning disabilities
John Evason is chair of the legislative and policy commitee, Employment Lawyers Association