The ruling was given in
the case of a senior policeman who requested extra time in
examinations because he said his dyslexia was a disability.
An employment tribunal ruled that he did not have a disability
and so anti-discrimination legislation should not apply. It said
that because the worker could function as well as other people, he
should not have the protection of the law.
The EAT, though, said that that approach undermines the entire
basis of anti-discrimination legislation.
The policeman, D Paterson, was 42 years old when he discovered
that he was dyslexic. He had by then risen to the senior rank of
chief inspector. He sought an extra time allocation of 25% when
sitting exams for promotion because of his dyslexia.
Though he had performed clerical duties well throughout his
career, medical reports indicated that he had difficulty with some
aspects of reading and would need more time than an average person
to produce the same work.
An Employment Tribunal agreed that he was significantly
disadvantaged compared with his peers when sitting exams but said
that since this was not a normal day to day activity, Paterson did
not qualify for protection under the Disability Discrimination
Act.
The EAT said that the Tribunal had made a serious mistake in its
judgment. "It would wholly undermine the protection afforded by
this legislation if the Tribunal were correct," wrote the EAT.
"Once it was accepted that the disability affected Mr Paterson's
ability to progress in his profession, the only reasonable
inference was that it had a substantial effect on his day to day
activities," said the ruling. "Any other conclusion would mean that
because of the effects of his dyslexia, he would in practice face a
glass ceiling; he would not be able to compete adequately in the
promotion stakes beyond a certain level."
The EAT also said that the way in which the original Tribunal
assessed disability was flawed. "[The correct approach] is not to
compare the performance of the employee with the average person in
the population, which was the comparison the Tribunal seems to have
made. Rather, it is the comparison between what the individual can
do and would be able to do without the impairment," said the
ruling.
The case will now return to the original Tribunal, but with
Paterson's impairment qualifying as a disability.
Employment law specialist Ben Doherty of Pinsent Masons, the law
firm behind OUT-LAW.COM, said that it is not the first time that
dyslexia has been deemed a disability.
"There have been previous cases of dyslexia being accepted as a
disability, however it will depend on the individual circumstances
of each case and in particular the severity of the dyslexia," he
said.
"Employers should consider every case of dyslexia on its own
merits, it is still the case that individuals with minor dyslexia
may not be disabled. In any instance of possible disability
discrimination, including dyslexia, the employer should consider
obtaining an expert's opinion on the employee's condition and
whether it amounts to a disability. If the expert's opinion is that
the employee is disabled, the employer should ensure that they do
not discriminate against the individual and should consider making
reasonable adjustments," said Doherty.
