Dyslexia in the Workplace - Conduct or Capability?

 Dyslexia in the Workplace - Conduct or Capability?

 Most employers will not know that Dyslexia is recognised under the Equality Act.  It is described as a ‘hidden disability’ because there are no discernible or physical signs of a ‘disability’. Yet, as many as one in 10 people in the UK workforce have dyslexia and face a number of barriers in most workplaces. It’s a neurological disorder affecting a person’s reading, writing and spelling skills and workers with a wide range of conditions grouped under the title of neuro-diversity (ND) – such as dyslexia, dyspraxia and indeed, attention deficit hyperactivity disorder (ADHD) face a challenging future. This neuro-diversity can be exceedingly frustrating for the employee, mainly as the skills it affects are so fundamental in the workplace. This often results in employees concealing their dyslexia or in fact being unaware of it and so it can lead to them being judged unfairly by managers and co-workers alike.

 But dyslexia affects people in different ways, depending on the severity; the most obvious signs to look out for in employees include inconsistent spelling, poor time-keeping, difficulties understanding directions and/or disorganised workspace; the traits that are often perceived by managers as poor performance and not tolerated in the workplace. However, these traits also manifest in poor performing individuals so it is understandable that managers are not aware. In fact, not all signs of the disorder are so definable. Some employees use ‘coping strategies’ and get along fine until a time in which it may cease to work in certain environments if for example they are being subjected to stressful situations. There then ensues a vicious circle of a very pushy manager, stressful situation, poor performance, disciplinary hearing, more stress etc. etc.

Legal

 The law places a duty on the employer to act reasonably in responding to performance difficulties that may result from a disability. The employer may honestly believe that an employee who may be bright verbally and fully functional in every other way was simply not trying and e.g. making too many mistakes. Therefore a person with a dyslexia type difficulty can get caught up in a disciplinary procedure that says basically your capability wasn’t good enough and we are dispensing with your services. Therefore, good advice to the employer would be to investigate the underlying reason for the difficulty and if dyslexia is a factor to put in place systems and practices that make a reasonable adjustment to the work environment and take into account whether this difficulty was the result of dyslexia as defined under the act and in what way you attempted to make a reasonable adjustment (equipment, training, and environment) to help the person improve.

 Disciplinary Action

In ‘the first instance disciplinary procedures are about helping the employee improve’.... not punishing them.  However, if there is little or no improvement having completed reasonable adjustments and if the employer follows a fair procedure and is ‘reasonable in all the circumstances’ and can demonstrate this in a legal process, the dismissal will usually be fair.

Training

 There are different types of training that you can implement in your company to help support dyslexic employees. Training for managers in dealing with widespread conditions such as dyslexia will remove much of the stress for individuals, who may be disciplined for weaknesses in their work that are caused by dyslexia.

 There needs to be an understanding of exactly what is a ‘Reasonable Adjustment for dyslexic workers’ ... Firstly recruitment and selection procedures must not discriminate against potential dyslexic employees by using methods which treat them less favourably than non-dyslexic candidates.

 Employers need to ensure that all diagnostic assessments include the following conclusions and recommendations:

1.     Give a definitive diagnosis of whether the individual is dyslexic and the nature, scope and implications of their dyslexia.

2.     State whether the person’s dyslexia is a disability for the purposes of the Equality Act

3.     Provide guidance on reasonable adjustments and related specialist training for the individual to enable them to develop strategies and skills which may help them compensate for or where possible overcome many of their dyslexic difficulties.

 

 Funding is available to help cover the cost of these reasonable adjustments

 Employees may be able to receive assistance through the Government’s Access to Work Scheme (AtW), a government-funded grant operated through Job Centre Plus. If an employee applies for funding within the first six weeks they are employed AtW may cover up to around 90% of the costs of the reasonable adjustments. The amount is dependent on the size of an organisation, as many bigger companies/government organisations may not be eligible for the grant in full.

 An important point to remember when using this scheme is if dyslexia has been diagnosed and access to work support secured, the company will clearly be acting outside the Equality Act should they refuse to facilitate an assessment.  

 Conclusion

Modern legal thinking seems to be that many of these difficulties can be addressed by reasonable adjustments and most dyslexic employees are entitled to such adjustments under the Equality Act. However, the Equality Act states that there is no obligation to make reasonable adjustments where the employer could not reasonably know of the disability. So this could be the reason why some employees are slipping into the disciplinary process without anyone realising there is an issue. In fact, in most cases the first an employer will know that there is a problem is when it manifests as a performance issue. Much of the arguments and discussion above is relatively new and in many cases very embryonic. The legalities are still being clarified as the case law develops and extends and courts and tribunals develop expertise. That’s why assessments are important and should be treated as confidential documents akin to medical reports and available to the employee and their representative, a senior line manager and a designated HR liaison officer to be agreed on a case by case basis.

 A point to note however is that many neuro-diverse people can be a real asset to an organisation as they bring a distinct range of skills to their work that can be of positive benefit to an organisation for example, strong leaders, lateral and innovative thinking, creativity and they work very well in teams. But many employers are still unaware of the impact this disability can have on an employee’s job or how to realise their potential.

 For further advice and guidance please call us on 0844 880 4582. 

 

 

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