Disability discrimination and reasonable adjustments: case study 1

Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on reasonable adjustments in relation to disabled employees with a case study that looks at a situation in which an employer considers the reasonable adjustments that it needs to make to accommodate an employee with dyslexia. 

Jason works in the distribution centre for a large retailer. He has worked for the company for eight years and has a very good employment record. He applies for a promotion to the position of warehouse supervisor following the resignation of his line manager, Sue. The job of warehouse supervisor involves data entry from order sheets and general administration tasks. The warehouse manager, Bill, is concerned that Jason may not be up to the job of supervisor, as he has previously noticed that he has problems with accuracy and speed when completing these tasks in Sue's absence. Bill discusses Jason's application with the company's HR manager, Jenny, who discloses that Jason has dyslexia. What advice should Jenny give Bill?

Dyslexia is a condition that is recognised as potentially falling within the definition of a disability under the Disability Discrimination Act 1995 (DDA). It is cited as a potential impairment in the Guidance on matters to be taken into account in determining questions relating to the definition of disability (PDF format, 125K) (on the EHRC website). (See also Disability discrimination and dyslexia: employment tribunal decisions.)

Whether or not Jason is disabled under the DDA depends on the effect of the condition on his day-to-day activities. The safest course of action would be for the company to proceed on the assumption that Jason has a disability and that the DDA applies to him. Jenny should advise Bill that it is unlawful for the company to discriminate against Jason because of his disability in the opportunities that it affords him for promotion or by refusing him such opportunities (s.4(2) of the DDA). The company is also under a duty to make reasonable adjustments in relation to Jason. Failure to do so could result in Jason bringing a successful claim against it under the DDA.

When considering Jason's application, Bill should make allowances for the effects of his dyslexia and be careful not to penalise him for the presentation of his application form. If the recruitment process involves practical exercises, Jason may require more time to complete them, or need some assistance with reading and completing documents that are used. However, before making assumptions about his condition, it would be advisable for Jenny or Bill to meet Jason and discuss what reasonable adjustments the company might need to make to the recruitment process, so that he is not disadvantaged by his dyslexia.

If the recruitment process is carried out by interview only, it will be important for the company to address the question of what reasonable adjustments might be necessary to the job, at the interview. Ideally, Jenny should be present at the interview with Bill, to assist him in considering what reasonable adjustments the company can make and to make further enquiries following the interview.

During his interview, Jason agrees that the duties of the warehouse supervisor that involve paperwork may present him with some problems. However, as this is only a small part of the job, he is confident that he will be able to carry out the role, provided that he has some assistance. He suggests that another employee could assist him in completing the administrative tasks. Following the interview, Bill is concerned that he may not be able to spare anyone to assist with these duties. What should Bill, and the company in general, do?

The company needs to give proper consideration to the nature of Jason's dyslexia and the problems that it presents for him. A diagnostic assessment in relation to Jason may assist the company in identifying his particular difficulties and on which parts of the job they will impact. The company should consider contacting the British Dyslexia Association (BDA) (details on its website) for further advice. The BDA suggests (on the Reasonable adjustments in the workplace page of its website) that a professional work-based needs assessment may be required to identify the specific work needs of a dyslexic individual, which could be obtained from the Access to Work programme (details on the Directgov website) available through Jobcentre Plus or an independent dyslexia consultant.

Jason has suggested that a reasonable adjustment might be for another employee to provide assistance with the administrative tasks. Bill should carefully consider this suggestion to see who might be best placed to provide Jason with the assistance that he needs. He should also consider whether or not the paperwork and data entry could be checked at certain points of the day by someone else, perhaps while Jason covered that individual's duties. Allocating some of the disabled person's duties to another person is listed as one of the suggested reasonable adjustments in s.18B(2) of the DDA. For a large employer, this is more likely to be a reasonable adjustment to make than for a small employer with a limited number of employees. In addition, the company should properly review whether or not there are other adjustments that it could make to assist Jason. The duty to make reasonable adjustments is a duty on the employer, not the employee (Cosgrove v Caesar & Howie [2001] IRLR 653 EAT). Therefore, it is advisable for the company to explore all possible options and not only those suggested by Jason. For example, there may be computer programmes or specialist IT equipment that it could use to overcome Jason's specific issues.

Once the company has fully explored all the options for making reasonable adjustments, if it wants to appoint Jason to the role it would be advisable for Bill and/or Jenny to meet him again and discuss the adjustments with him, and to record in writing what has been agreed (see XpertHR's model Tailored reasonable adjustment agreement for an employee with a disability). If the company does not want to appoint Jason to the role, it should have very clear reasons for not doing so that are unrelated to his disability (and after taking into account any adjustments that it could reasonably make). If there are adjustments that the company does not consider it reasonable to make, it should explain why with reference to the factors listed in s.18B(1) of the DDA (see Disability discrimination and reasonable adjustments: overview for more details).

Under the Equality Act 2010, which is due to be implemented from 1 October 2010, the duty to make reasonable adjustments is largely unchanged from the existing duty under the DDA. In practical terms, the advice to the company would be the same under the Equality Act. The Act makes it clear (in s.20(5)) that the duty extends to taking reasonable steps to provide an auxiliary aid (which could include, for example, special computer software) and that the cost of making a reasonable adjustment cannot be passed to the employee (s.20(7)).

Bill decides to appoint Jason to the role of warehouse supervisor. He agrees to make adjustments so that Jason will have assistance with the data entry and administrative tasks for a short period each morning and afternoon. The company's IT team also makes some technical adjustments to the internal computer systems to make it easier for Jason to input the information in the correct way. Does the company need to do anything else?

It would be good practice for the company to meet with Jason shortly after his promotion to make sure that the reasonable adjustments that it has made are sufficient to allow him to carry out the job properly, and to establish whether or not it needs to do more. This review could be carried out alongside the review that should, ideally, be carried out with any newly promoted employee (or a probationary review for a new employee), to assess how the job is going and to identify any training needs. On an ongoing basis, the company should also be mindful of the impact that any changes to its systems or procedures may have on Jason (or any other disabled employees), and consult with him prior to introducing changes to assess whether or not further adjustments are required.

Next week's topic of the week article will be a second case study on reasonable adjustments and will be published on 19 July.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.