Hina Belitz reviews the practicalities of discrimination law and equality practices at work
Discrimination law is challenging, but disability discrimination law where it relates to neurodivergent conditions can prove even more so. I recently commented on the December 2022 employment tribunal decision of Jandu vs Marks and Spencer (2200275/2021), which considered in detail ‘reasonable adjustments’ in relation to employees with dyslexia. The case involved the management of a redundancy consultation process for a dyslexic employee, and shone light on what is regarded to be a ‘reasonable adjustment’.
The law in this area is clear. If an employee has a physical or mental impairment that has a ‘substantial’ and ‘long-term’ adverse effect on their ability to undertake normal daily activities, then, if reasonable, adjustments should be made to support such an employee in their role. However, difficulty arises because every individual and condition is different, and as Ms Jandu’s case makes clear, employers therefore have an obligation to investigate and assess the nature of the condition and which adjustments could help an individual if a request is raised. According to a medical report, Ms Jandu’s dyslexia was said to lead specifically to issues with spelling and sentence formation, but also meant that she would be more compliant in taking work instructions than other individuals. Due to her dyslexia, she would process and implement instructions in her own time. An adjustment that would assist Ms Jandu would therefore perhaps not assist other individuals suffering with dyslexia, since such neurodivergent learning difficulties are multi-faceted.
The key is ensuring employers have an adequate understanding of the neurodivergent condition that the individual in question has, in order to be able to address any reasonable adjustments that may be required. Supporting individuals in the workplace should be a focus for employers for a number of reasons, many of which were highlighted by this case. Firstly, the legal costs arising if a claim is lodged at employment tribunal for mismanagement of such disabilities can be extensive. In Ms Jandu’s case, Marks and Spencer’s lack of consideration of potential support through a redundancy consultation and appeal process, led to a legal award of £50,000. Interestingly, this outcome arose despite the fact it was agreed that Marks and Spencer had provided Ms Jandu with adequate support during her day to day working life.
Secondly, numerous studies have shown that far from being a hindrance to working life and a difficulty to overcome, many individuals with learning issues such as dyslexia or dyscalculia, have strengths to bring to the table. Individuals with dyslexia are, according to the American Dyslexia Association, more likely to implement ‘big picture thinking’ and see problematic tasks holistically, rather than focusing on individual aspects. This often leads to innovative thinking and novel ways of managing issues.
Thirdly, making reasonable adjustments for disabled individuals is often not as arduous or costly a task as employers think, but makes a huge difference for the relevant employees. In Ms Jandu’s case, it was unfortunate that reasonable adjustments were not forthcoming in the redundancy consultation process stage of her employment, given her employer had adequately supported her daily work life by, for example, colour coding key parts of long emails and reading through any communications that were to go to wider business teams. These steps were an agreement between Ms Jandu and her manager which had, prior to the consultation, required limited additional effort and were highly effective in supporting Ms Jandu reduce the impact of her disability.
Given dyslexia and dyscalculia’s prevalence in the UK (the British Dyslexia Association estimates that between 10-15 per cent of UK citizens are in some way dyslexic), various types of software have been developed to make it easier for individuals with dyslexia to use word processing systems. This is a potential avenue for employers to explore, in partnership with affected employees, when they learn of a need for adjustments. While adjustments only need to be introduced for the individuals with a disability, many employers are starting to introduce training courses for their wider workforce to understand learning difficulties such as dyslexia. Such efforts increase empathy amongst colleagues and help develop a culture of acceptance and understanding, which may also mean managers are more aware of potential adjustments that may be helpful, as well as why they are important.
Hina Belitz is a partner and specialist employment lawyer at Excello Law: excellolaw.co.ukTags:
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