Dyslexia has not been well understood until relatively recently. In many instances people suffering from this condition have not been properly diagnosed or supported, and instead have been side-lined as slow learners or poor performers in the workplace.
A recent study by the University of Edinburgh reveals that one in ten people suffer from dyslexia. This means that there is a significant portion of the workforce for whom accommodations may be required in order to enable them to undertake certain roles.
Given that dyslexia is regarded as a “disability” under the Human Rights Act, discrimination against people suffering from this condition is unlawful. This can lead to difficult issues in an employment context where a job requires a particular level of literacy or reading ability.
The Act imposes particular obligations on employers in respect of the recruitment and employment of people with disabilities, including that an employer may not refuse to employ an applicant who is qualified for work, by reason of their disability. There is an exception where the person could perform the role only with the aid of special services or facilities and it is not reasonable to expect the employer to provide those services or facilities.
The starting point is that an applicant for a position must first demonstrate that they are qualified to undertake the role. It is only if they can establish that they are otherwise qualified and competent that the employer is then required to consider what reasonable accommodations might be provided to support them to perform the position.
A recent case relating to a dyslexic man who failed to get into Police College after failing the typing test three times illustrates the how the requirement to demonstrate competency sits with the employer’s obligation to provide additional support.
Guy Greenslade disclosed that he had dyslexia when making his application to Police. He had to sit a variety of both physical and intellectual tests, and passed all of these bar one. In respect of the typing test Greenslade did very poorly, and did not improve much on his second and third attempts.
When his application was rejected, Greenslade took a case to the Human Rights Review Tribunal claiming he had been subject to unlawful discrimination. In a decision released late last year, the Tribunal found that Greenslade was not unlawfully discriminated against because his failure to pass the typing test meant that he was not “qualified” for the position.
The Tribunal accepted that it was for the employer to determine the requirements or qualifications for a particular position, although they must be “legitimate” taking into account the nature of the job and the environment in which it is to be performed. In this case Police argued that the typing assessment was linked to key operational requirements, for example recording information in Police intelligence systems, completing reports and preparing documentation for court proceedings.
Further, Police had sought advice from a Senior Psychologist, Inspector Ian Saunders, who assessed that Greenslade would never be able to pass the test even with accommodations, and that the very poor typing test results could be indicative of other relevant cognitive issues. Saunders concluded that without more fully understanding the extent of these issues, Police would be taking on more risk than was reasonable and potentially setting itself up for significant challenges and stress both in the training and operational environment, potentially in breach of its Health and Safety at Work Act obligations.
Saunders’ report also noted that other applicants with dyslexia had passed the test and been accepted into Police but observed “I don’t think that makes it a sound business decision to hire someone with the expectation they will require support to be minimally competent or pass the training requirements – it is simply unfair to the candidate, future colleagues/supervisors and the public”.
The Tribunal found that the typing test was a legitimate qualification for a role within Police and therefore Greenslade could not establish that he was “qualified” for employment at Police College. Given this, the secondary issue of what reasonable accommodations the employer may have to provide did not arise. On this point the Tribunal found that it would be unreasonable to expect an employer to provide special services or facilities to support someone to perform a role that they were not capable of being qualified for. That is the case even if the reason for the lack of competency is disability related.
In relation to whether Greenslade should have been given further opportunities to sit the test, the Tribunal held that an employer can not be required to grant further attempts to any candidate to meet a legitimate criterion or qualification for employment where it is clear that they have fallen far short of demonstrating capability.
This case has now been appealed to the High Court. In the meantime, however, it provides a useful explanation of the law on a sensitive topic. In short, the position is that an employer may not discriminate against any applicant for employment on the basis of their disability, but the applicant must first establish that they are otherwise qualified to perform the role. Only then does the issue of what special supports or facilities the employer may have to provide become relevant.