An employee has described how she contemplated suicide after suffering discrimination on grounds of her dyslexia, by her employer, Starbucks.
The employment tribunal heard how Ms Kumulchew had made errors when recording temperatures in the course of her duties at Starbucks. These mistakes ultimately resulted in Ms Kumulchew being accused of falsifying documents, having her responsibilities reduced and being required to undergo re-training. The mistakes were found to be directly related to her dyslexia. The employment tribunal decided that Starbucks had failed to fulfil its obligations to make reasonable adjustments and that Ms Kumulchew (who remains employed by the company) had indeed been subject to disability discrimination.
Equality Act 2010 & obligations of employers
Employers will be aware that the Equality Act 2010 (the Act) prohibits discrimination, harassment and victimisation on the grounds of various protected characteristics, including disability. In addition to this, where an employee is disabled, an employer has a duty to make reasonable adjustments to try and reduce or remove any disadvantage caused to that individual by their disability.
These obligations apply at all stages of the employment relationship from recruitment through to termination (and beyond). Claims under the Act will inevitably involve significant costs (certainly in terms of management time, and probably in relation to legal fees). The claims often attract negative publicity and compensation levels can be high. It’s crucial for a business to understand its obligations and to take steps to reduce its exposure to potential claims.
Firstly, employers should ensure they take adequate steps to identify those individuals who might be disabled. Employers will not necessarily avoid all liability where they did not know, but should reasonably have known, about an employee’s disability. Similarly, just because an employee did not declare their medical condition at the recruitment stage does not absolve the company of responsibility.
Ms Kumulchew’s case also suggests that many employers are simply not aware of what constitutes a disability. Often the issue is not straight-forward and will need to be considered on a case-by-case basis. In determining whether or not an individual is disabled the tribunal will consider whether the individual has a physical or mental impairment which has a substantial effect (i.e. it has lasted or is likely to last 12 months or more) and adverse effect on their ability to carry out normal day-to-day activities. Our experience is that it is generally relatively easy for an employee to be classed as disabled, as the legislation is drafted so widely.
Case law has established that the term ‘mental impairment’ is intended to cover learning disabilities such as dyslexia. However, whether or not dyslexia amounts to a disability will depend on the impact that it has on the employee in question. Some employees with dyslexia will not necessarily be considered disabled. Employers should be aware that poor writing skills, a lack of concentration and (perhaps surprisingly) poor time-management skills are just some of the effects of dyslexia. Where employers do take these factors in to account during the recruitment, assessment and dismissal of employees they should ensure that they have carried out appropriate investigations to determine whether or not there is an underlying disability. This may involve a medical assessment but may also be determined through conversations with the employee.
How can employers avoid discrimination in the workplace: equal opportunities policy & reasonable adjustments
Having a comprehensive written equal opportunities policy is important so that employers can make it clear that individuals will not be subject to any unfair treatment on grounds of a disability. The policy should encourage employees to notify the employer of their condition so that reasonable adjustments can be made.
If an employee is identified as being disabled, employers must not subject them to any directly or indirectly discriminatory treatment (indirect discrimination would cover Ms Kumulchew’s case, where she was penalised not for being dyslexic, but for something related to her condition). They should also consider their duty to make reasonable adjustments, consulting with the employee as necessary and taking appropriate medical advice. There is no exhaustive list of the type of adjustments that employers can make but, in the case of dyslexia, the following might be reasonable:
- Providing information to the employee in an accessible form, for example using a large text size and diagrams or printing documents onto different coloured paper;
- Modifying procedures for testing or assessing employees – it may be unfair to assess a dyslexic employee purely on their writing ability;
- Giving the employee access to a digital recorder to reduce the need for them to take notes.
Employers only need to make adjustments that are considered “reasonable”. What is reasonable will depend on the circumstances including how helpful the adjustment would be to the disabled person, the cost of the adjustment and the effect that the adjustment would have on the employer’s business.
Finally, employers should be prepared to respond to any allegations of discrimination. This means having fair disciplinary and grievance procedures which set out clearly the process for raising complaints and confirming how discriminatory behaviour will be dealt with.
The case involving Ms Kumulchew has highlighted the fact that dyslexia and other learning disabilities are capable of amounting to a disability within the meaning of the Act, and therefore it’s crucial, before taking any action in relation to an employee (whether that action is dismissal, demotion or the issue of a warning), to consider any underlying medical issues and to take these into account.