An employee with less than a year’s service was dismissed following an assessment which found she had mild dyslexia. Reasonable adjustments were suggested which the employer disregarded. Esther Smith and Matthew Whelan advise on whether the employer’s actions were justified.
The question
We have an employee, with less than 12 months’ service, who was under-performing and making errors in typing and filing. We suspected dyslexia and she was sent for an assessment. The assessment came back as the employee having mild dyslexia and below average intelligence. It suggested a number of reasonable adjustments but we felt, because of the employee’s low intelligence, that the adjustments wouldn’t have an effect. We dismissed the employee without discussing the adjustments with the employee, or putting any of them in place. The employee is now saying they will go to an employment tribunal. Can we justify not putting in the reasonable adjustments on the grounds of her low intelligence?
Legal advice
Matthew Whelan, solicitor, Speechly Bircham
The duties and obligations under the Disability Discrimination Act will only apply if the employee is disabled. Dyslexia may fall within the definition of a disability, as may the low intelligence (if, for example, this arises from a condition relating to a birth defect). You may however be able to argue the employee is not disabled.
If the employee is disabled then, as you mention, you will be under a duty to make reasonable adjustments. The relevance of the employee’s low intelligence very much depends on the circumstances and it is difficult to say how that argument would need to be put to a tribunal and its chances of success. I can see, however, that a tribunal would see this as a technical argument and you would need to carefully argue this point, meaning taking detailed legal advice on this would be best.
It is of course possible the employee will argue another form of disability discrimination in addition to the failure to make reasonable adjustments.
Matthew Whelan can be contacted at [email protected]. For further information, please visit www.speechlys.com.
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Esther Smith, partner, Thomas Eggar
You are in some difficulty here, because you have made an assumption about the effect of the adjustments without really having any good or reasonable grounds to come to that assumption. Whilst you do not say what the adjustments were, it appears that you accept that they were reasonable, and therefore under the Disability Discrimination Act 1995 you have a duty to implement them.
Rather than assume that this employee would not respond positively to the adjustments due to her level of intelligence, it would have been much better to implement the changes and see what happened. If your assumption is right, then you would have had some evidence to back this up and would be in a better position to defend her claim.
As it stands, I think that this lady will have a pretty strong claim for discrimination and the failure to implement reasonable adjustments. Sorry!
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit www.thomaseggar.com.
One Response
Below average intelligence
I feel quite uneasy with the above term and wonder about how it will be used in a tribunal. However,there seems to be an element of subjectivity as the employer “feels” that the adjustments will do not have any effect. I would rather implement these adjustements then in the light of the results take a decision.