Dyslexia – Avoiding Discrimination in the Workplace

Dyslexia is a recognised disability under the Equality Act 2010, which replaced the Disability Act 2005. The Equality Act legally protects people from discrimination in the workplace and protects against:

• direct discrimination – treating a person worse than someone else because of a protected characteristic, e.g. where an employee is sacked because they are dyslexic;
• indirect discrimination – putting in place a rule or way of doing things that has a worse impact on someone with a protected characteristic than someone without one when this cannot be objectively justified, e.g. requiring all employees to clear their workload each day before leaving the office;
• treating a disabled person unfavourably because of something connected with their disability when this cannot be justified, e.g. sacking a dyslexic employee for reading or writing reports more slowly than their peers.

Employers must not discriminate against a disabled person in:

• the recruitment and retention of employees;
• promotion and transfers;
• training and development;
• the dismissal process.

Employers are also under a duty to make reasonable adjustment to their premises or employment arrangements if these substantially disadvantage a disabled employee, or prospective employee, compared to a non-disabled person.

An employer will be obliged to make reasonable adjustments if it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.

What are reasonable adjustments?

The duty to make reasonable adjustments requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers unfavourably and can mean taking positive action which can include:

• reasonable adjustments to work policies and practices;
• reasonable adjustments in management and supervisory styles and methods;
• specialist one-to-one dyslexia skills training, designed to help the dyslexic employee work more effectively and overcome common dyslexic problems such as organisation, planning, prioritisation and time management, effective reading, literacy and business writing skills, and short-term memory problems;
• training in assistive technology to assist the dyslexic employee gain proficiency in specialist hardware and software.

The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. In relation to disability discrimination, the Equality Act protects disabled people, so it is not discrimination to treat a disabled person more favourably than a non-disabled person.

What is reasonable?

The requirements for reasonable adjustments will differ from case to case. An adult diagnostic assessment and a workplace needs assessment (WNA) are vital steps in this process.

The WNA should include recommendations that the employer should consider putting in place to assist the employee. However, the recommendations made by an assessor in a WNA will not necessarily constitute reasonable adjustments that an employer is required to make.

There are two ways to arrange a WNA. The first way is through the Government’s Access to Work (A2W) scheme.

The second way is to arrange the WNA with a private organisation or consultant that specialises in dyslexia-related WNAs, writing comprehensive reports offering long-term expert support to employees and employers. If a WNA is arranged privately, so long as the report is in a form acceptable to Access to Work, the employee/employer can still apply to Access to Work for the funding for the training or equipment that is recommended.

In deciding what is reasonable, employers will need to balance whether the recommendations have the potential to significantly reduce the disadvantage faced by the dyslexic employee alongside possibly conflicting factors such as:

• the size of the organisation;
• the nature of the job;
• the impact on health and safety;
• the practicality of the adjustments;
• cost, bearing in mind the size of the organisation, the resources it can access and the nature of its work;
• the potential for serious disruption to other colleagues.

Ultimately it is only an employment tribunal that can formally determine whether or not an employer’s adjustments are reasonable in specific circumstances. The more comprehensive and expert the recommendations in a WNA, the more likely they are to meet the tests tribunals will use to make determinations on reasonableness.

However, the Employment Appeal Tribunal has acknowledged that cost is one of the central considerations in the assessment of reasonableness and has given guidance on how this issue should be approached. The EAT has stated that it must be weighed with other factors including:

• the degree of benefit to the employee;
• the size of any budget dedicated to reasonable adjustments (though this cannot be conclusive because the size of the budget is determined by the employer);
• what the employer has chosen to spend in what might be thought to be comparable situations;
• what other employers are prepared to spend;
• any collective agreement or other indication of what level of expenditure is regarded as appropriate by representative organisations.

However, an employer with substantial resources will not necessarily be required to make very expensive adjustments. Money is by no means limitless even in large organisations and balancing a disabled person’s need for adjustments against other spending priorities will always involve difficult judgements. In Cordell v Foreign & Commonwealth Office UKEAT/0016/11, an employment tribunal held that, despite the FCO’s substantial overall budget, the costs of providing English lipspeaker support for a profoundly deaf employee in an overseas diplomatic post in Astana, Kazakhstan (about £250,000 a year) were unreasonable. The Tribunal compared this with other costs, such as the disabled employee’s salary (about £50,000), the FCO’s total disability budget (£562,934), the highest cost paid for reasonable adjustments in respect of any other employee (£49,000), and the total staffing costs for Astana (£295,000 for diplomatic staff and £190,000 for local staff).

The duty to make reasonable adjustments applies to employers of all sizes, and to prospective and ex-employers.

Discrimination against a disabled person occurs where an employer fails to comply with a duty to make reasonable adjustments imposed on them in relation to that disabled person. There is no justification for not making a reasonable adjustment. The obligation is absolute and there is no upper limit on the amount of compensation a tribunal can award to a successful claimant.