Adjustments should have been made for dyslexic employee
What do Jamie Oliver, Keira Knightley, Steven Spielberg and Richard Branson have in common? They are just a few of the high profile celebrities who are dyslexic. According to the British Dyslexia Association, one in ten people have dyslexia, a learning difficulty that can cause problems with reading, writing and spelling.
Starbucks are once again attracting headlines after they unsuccessfully defended a disability discrimination and victimisation claim brought by dyslexic employee, Meseret Kumulchew.
Ms Kumulchew worked as a supervisor and her duties included taking the temperature of fridges and water at specified times and entering the results into a duty roster. After misreading certain numbers, she mistakenly entered inaccurate information. She was then accused by Starbucks of falsifying documents even though Starbucks were aware that Ms Kumulchew was dyslexic. Her duties were reduced and Ms Kumulchew was also told to retrain.
The Equality Act 2010 defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Dyslexia in itself is not necessarily a disability but it may be, depending on the individual's circumstances and if it satisfies the Act's definition of disability. The Act also requires employers to make reasonable adjustments for disabled employees where they know, or could reasonably be expected to know that the individual has a disability and is likely to be placed at a substantial disadvantage compared to non-disabled staff.
The Employment Tribunal held that Starbucks had failed to make reasonable adjustments for Ms Kumulchew's reading difficulties and had discriminated against her because of the effects of her dyslexia. The amount of compensation to be paid to Ms Kumulchew will be decided at a future hearing.
Ms Kumulchew, who still works for Starbucks, said that more time to familiarise herself with a task and someone to check her work for any mistakes would have been helpful adjustments.
There is plenty of guidance available for employers in how to prevent discrimination against disabled people, specifically, the Equality Act's Employment Statutory Code of Practice. The Code sets out numerous examples of possible adjustments that might be taken by employers including:
- making adjustments to premises
- providing information in accessible formats
- allocating some of the disabled person’s duties to another worker
- transferring the disabled worker to fill an existing vacancy
- altering the disabled worker’s hours of work or training
- acquiring or modifying equipment
- employing a support worker to assist a disabled worker
- modifying disciplinary or grievance procedures for a disabled worker
- adjusting redundancy selection criteria for a disabled worker.
In some circumstances, it may be necessary for an employer to take a combination of steps.
When considering the adjustments to be made and whether such adjustments would be reasonable, the Code also sets out some of the factors which might be taken into account when deciding what is a reasonable adjustment for an employer to take, for example:
- whether taking any particular steps would be effective in preventing the substantial disadvantage
- the practicality of the step
- the financial and other costs of making the adjustment and the extent of the any disruption caused
- the extent of the employer’s financial or other resources
- the availability to the employer of financial or other assistance to help make an adjustment
- the type and size of the employer.
Additional guidance is also available from ACAS. In December 2015, it published comprehensive guidance "Disability discrimination: key points in the workplace" which provides an overview of the types of disability discrimination that can occur in the workplace, how it can be dealt with and how to reduce the risk of disability discrimination.
For more details of the ACAS guidance and an update on recent case law developments in the context of reasonable adjustments please see our earlier article.
Complying with the duty to make reasonable adjustments is often one of the most challenging issues for employers. However, it is a challenge that needs to be met - not simply to comply with legal obligations under the Equality Act but to actively support disabled employees. As Dr Kate Saunders, CEO of the British Dyslexia Association said, "Many dyslexics are struggling in the work place with very high levels of anxiety, because employers do not have the training or the awareness to make adjustments for them."