What are the employers’ legal obligations?
One in ten people are estimated to have dyslexia according to the British Dyslexia Association and charities are encouraging employers to see the benefits of what they describe as ‘dyslexic thinking’ involving above-average creativity and problem-solving skills.
In this article, we look at the legal obligations on employers and offer some practical tips for employers to support dyslexic job applicants and employees.
Dyslexia affects individuals in different ways. What this means for dyslexic employees is that they may have to work harder than their peers just to keep up with the demands of their jobs.
It can often affect spelling, reading and the ability to process information quickly, as well as remembering information. It can also affect concentration and organisational skills. A recent employment tribunal case also found that for one employee, his dyslexia resulted in him occasionally not being able to properly express what he was thinking (Borg-Neal v Lloyds Banking Group 2022).
Employers’ obligations
Dyslexia, along with other common forms of neurodiversity such as autism, has long been recognised by employment tribunals as a possible disability. This can give dyslexic individuals the protection of the Equality Act 2010. To be protected, their dyslexia must have a long-term and substantial adverse effect on the person’s ability to carry out normal day-to-day activities.
Discrimination against disabled employees or job applicants is unlawful even if it is unintentional, and it can take a number of forms:
- Direct discrimination is to treat someone less favourably because of their dyslexia, for example by not giving a candidate an interview because they disclosed that they have dyslexia.
- Indirect discrimination can occur where an employer has a provision, criterion or practice that puts individuals with dyslexia at a disadvantage compared to someone without it. This could occur where a company routinely rejects job applicants whose applications have typos and spelling mistakes and this rejection cannot be justified.
- Unfavourable treatment can happen because something arising in consequence of a disability is also unlawful, unless it can be justified. For example, performance managing an employee for being slow at producing written materials where this is due to their dyslexia. If reasonable adjustments could have helped the employee overcome the challenges that led to them being performance managed, it will be hard to justify the performance management.
- Harassment is unwanted conduct related to a disability, causing a distressing or offensive environment, for example use of offensive terms referring to poor cognitive functions.
- Failure to make reasonable adjustments can easily trip up the unwary employer, and we explore this in more detail below.
Getting informed
Even if an employee does not declare that they are disabled, the employer could be on notice that they may be a disabled person under the Equality Act 2010. This could happen where the employee appears to struggle with specific tasks that others find straightforward, or mentions always taking longer than others to read a report. Employers may be expected to explore this with the employee.
Obtaining occupational health advice or an assessment by a psychologist may be a necessary next step.
Reasonable adjustments
Occupational health advice or suggestions in a dyslexia assessment can be helpful when looking at reasonable adjustments. Such advice or an assessment should be discussed with the employee, along with any suggestions they have about changes that could help make their working life more accommodating of their dyslexia. What works will depend on the individual.
Employers only have to make adjustments that are reasonable. A number of factors are at play in determining what is reasonable, including the cost to the employer and how effective the step will be for removing the disadvantage that the employee experiences. For example, some possible adjustments include:
- ensuring job application forms are compatible with assistive technology software;
- using sans serif fonts;
- providing assistive technologies like speech-to-text software;
- allowing extra time for tasks involving processing lengthy documents;
- allowing recording of meetings or instructions rather than taking notes;
- positioning the employee’s desk in a quieter area or allowing homeworking if they need to avoid distractions; or
- reallocating duties that may be particularly challenging for the employee.
Any adjustments should be discussed with the employee and reviewed regularly to check that they are effective.
Support for employers
While they will not pay for reasonable adjustments, the Government scheme Access to Work may assess what adjustments should be made. The British Dyslexia Association offers a range of services for employers, and Made by Dyslexia provides guidance and training for employers.
By training staff, employers can increase awareness and understanding of neurodiversity, including dyslexia. An open and understanding culture, coupled with informed managers, should help ensure potential issues are constructively addressed before the employee encounters difficulties.
How we can help
We can advise you on making your recruitment and other processes more dyslexia-friendly, as well as give you practical advice on dealing with any specific cases. This should help you avoid costly claims as well as help you become an inclusive employer. For further information, please contact Norman Hunter-Goulder in the employment team on 01480 702207 or email [email protected].
Norman Hunter-Goulder LLB, Senior Associate
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