August 7 2007 Employment Law Enews

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Dyslexic police officer was "disabled"

It is well established that mental impairments such as dyslexia can be a disability for the purposes of the Disability Discrimination Act 1995 (DDA), but this hinges on whether the impairment has a sufficiently adverse effect on the individual's ability to carry out normal day-to-day activities.

In this recent case, a senior police officer with "mild" dyslexia was held by the EAT to be disabled for the purpose of the DDA.

Facts

Mr Paterson, a police officer, had been promoted a number of times and the next stage in his career was to complete a promotion assessment to superintendent. Throughout his career he had taken a number of exams and carried out managerial functions. He had dealt with a vast amount of paperwork of varying complexity and had been acknowledged as having a good writing style. He only discovered he was dyslexic in 2004.

Mr Paterson claimed that his employers had failed to make reasonable adjustments in the process for determining whether he should be promoted to superintendent. Although he had been allowed an additional 25% time at each stage of the selection, he argued this was insufficient.

The key issue for the tribunal was whether Mr Paterson's dyslexia had a substantial adverse impact on his day-to-day activities and therefore amounted to a disability. He had shown that he could achieve a senior position in an organisation requiring an emphasis on paperwork. The tribunal did not agree that there was any impairment to his day-to-day activities, such as writing reports and carrying out financial and budgetary duties. Whilst Mr Paterson's dyslexia disadvantaged him compared with other non-dyslexic colleagues competing for senior positions, the tribunal held that any disadvantage could be compensated for by good industrial practice (such as allowing him the extra time in the selection process). Mr Paterson appealed this decision to the Employment Appeals Tribunal (EAT).

Held

The EAT upheld the appeal. Since the tribunal had acknowledged that Mr Paterson was at a definite disadvantage in comparison with his colleagues in the selection process, his impairment had a substantial effect on his day-to-day activities and he was therefore disabled. The EAT reiterated that the tribunal's role is not to compare the employee's performance with the average person (as it had done here), but to make a comparison between what the individual can do and what they could do without the impairment.

Comment

This case is interesting because it confirms that an individual with dyslexia who has coped very well over the course of their career and has only started to encounter difficulties at a senior level, can still be disabled within the meaning of the DDA. Whilst sitting exams and completing an assessment process may not be "day-to-day activities" for most people, in this context they were. What the EAT did not determine, however, is what adjustments beyond the additional time allowed to undertake the assessments may have been required for the employer to fulfil its duty to make reasonable adjustments. It will now be for a further tribunal to decide whether his claim for disability discrimination succeeds.

ACAS reports fewer tribunal applications

ACAS (the Advisory, Conciliation and Arbitration Service for employment disputes) has announced a slight fall in claims made to the Employment Tribunal in their annual report for the year ending 31 March 2007.

The total number of claims made to the tribunal for the year 1 April 2006 to 31 March 2007 was 105,177 compared with 109,712 in the previous year. The largest area for complaint was unfair dismissal which totalled 35,583 claims made to the tribunal - a small decrease of 361 claims from the previous year.

One of the conclusions from the recent Gibbons review of dispute resolution was that the statutory procedures had not achieved their desired aim of reducing the number of tribunal claims, and despite the small overall drop this would appear to be supported by these latest figures. A breakdown of the figures shows that there was a significant drop in working time claims (from 23,907 to 3,780), but a big increase in equal pay claims (from 12,393 to 25,264) due to the number of claims being brought by groups of public sector employees.

The predicted surge in age discrimination claims has not yet occurred, with only 739 claims being made between 31 October 2006 (when the legislation came into force) and 31 March 2007. Whilst this may not seem very many, it is approximately equal to the combined number of sexual orientation and religious discrimination claims filed in the entire first year after they were introduced. It is also likely to be a while before we see any appeal decisions at the EAT, and the number of claims may well increase once some of the early cases have been determined.

Calculating increased holiday entitlement

Regulations have now been published to amend the existing Working Time Regulations 1998, increasing the statutory annual holiday entitlement from four to 5.6 weeks. This will take effect in two stages: an increase of 0.8 weeks from 1 October 2007 (4 days for a full time employee) and a further increase of 0.8 weeks from 1 April 2009 (totalling eight days for a full time employee).

Calculating an individual's holiday entitlement following this increase could be complicated, depending on the number of days the individual works and the employer's own holiday year. Many employers' holiday years coincide with calendar years, meaning an increase taking effect from 1 October will fall three quarters though the holiday year.

The DTI (now DBERR) has promised an online calculator tool for working out individual entitlements. This is not yet available, but it has issued a detailed list of Frequently Asked Questions, together with a Holiday Entitlement Ready Reckoner for the more straightforward scenarios.

The FAQs include guidance on calculating holiday entitlement for atypical employees, such as casual workers or those on annualised hours contracts. They also address the complicated issue of workers starting or leaving mid-way through a leave year.

Both the FAQs and the Ready Reckoner are available on the DBERR website.

This article copyright © 2007 Steeles Law llp. All rights reserved.