Opinion

Disability (un)awareness - should employers be liable?

14th June 2018

Reasonable belief of dyslexia – Toy v Chief Constable of Leicestershire

Discrimination on the basis of disability is an issue that employers can on occasion, be faced with. In some instances, employers may fail to undertake the relevant investigation and assessment of an employee’s health thereby leaving themselves exposed to potential claims. Conversely, there are circumstances where employers have not had any knowledge of a particular disability at the time of making a disciplinary decision.

In Toy v Chief Constable of Leicestershire the Employment Appeal Tribunal (EAT) was faced with a claim for: direct disability discrimination, discrimination arising from a disability, failure to make reasonable adjustments and race discrimination.

The employee in question was employed as a probationer Police Officer. He had worked as a Police Community Support Officer for a number of years before applying to become a fully qualified police officer. He completed the academic stage of training which lasted for 20 weeks and then moved on to practical training which involved 12 weeks of shadowing a tutor police officer with a view to demonstrating 37 key skills.

During this period of time, the employee was mentored by three tutors all of whom cited serious performance issues. During the 12 week phase, the employee had managed to demonstrate only 13 of the 37 required skills.

As a result, the employee was then taken through a three stage disciplinary process. At the second stage and during a meeting, it was mentioned that the employee “might” be suffering from dyslexia. The employee had never mentioned this before either during his PCSO career or during the academic stage of training. At the final stage of the process, it was again mentioned that dyslexia could be a possibility but the Chief Constable did not believe this to be the case.

The EAT dismissed the employee’s appeal reasoning that the Chief Constable could not have held a reasonable belief of the disability at the time of the dismissal. Interestingly the ET referred to expert reports which stated that the employee did have dyslexia but did not mention the fact that this would put the employee at a substantial disadvantage. Further, other police officers with dyslexia had demonstrated an ability to undertake their job but in this circumstance, the Chief Constable highlighted the following:

  • the employee was not following instructions
  • he failed to highlight the relevant safety issues
  • a failure to understand the legal aspects of the role
  • radio communications were not properly understood
  • an inability to take the lead in incident handling.

The Appeal was dismissed and the EAT highlighted the fact that there were manifest failings which were completely unrelated to dyslexia.

Employer Considerations

The case of Toy is a decision to be welcomed by employers in respect of rebutting an allegation of disability discrimination. In this case, the employee, during the disciplinary process, raised the point that he might have dyslexia. At the point of the ET, a medical report had confirmed his condition but did not state that the condition would put him at a substantial disadvantage.

In this case, the employer was able to establish that the decision to dismiss was completely unrelated to the dyslexia and was instead made solely on the basis that this employee was essentially unable to undertake his role and demonstrated “manifest failings”.

However, whilst Toy is in a sense helpful to employers, it must be treated with caution given that it was quite fact specific. In this case, the employee stated that he might have dyslexia although there was no previous mention or evidence at that stage. On that basis, the ET and EAT took the view that the employer could not reasonably be expected to know about the employee’s condition. If however, the employee was able to produce some type of medical evidence during the disciplinary process, the decision may have been very different.

Despite the fact that Toy can be used to justify an employer's failure to further investigate a disability, it should instead be used to exemplify the importance of investigating an employee’s potential disability as soon as it is raised.

 

 

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