Is dyslexia a disability? Neurodiversity in employment law
Neurodiversity relates to differences in individual brain function, this is unique to everyone. The majority of the workforce are neurotypical, however around 1 in 7 people are neurodivergent and as such how they behave, process information, think, and interpret information can be different to others.
It is beneficial for employers to recognise and support neurodiverse individuals because such neurodivergence can result in greater creativity as well as an enhanced talent pool and morale. It is also possible that neurodiversity could be classified as a disability for the purposes of the Equality Act 2010 if an individual fulfils the requirements within the Act. If an employee is deemed to be a disabled individual, then an employer will be responsible for making any reasonable adjustments to support such individuals in the workplace.
Dyslexia is an example of a neurodiverse condition which can amount to a disability if it has a substantial adverse impact on an employee’s ability to carry out day-to-day activities. The British Dyslexia Association explains that dyslexia is a specific learning difficulty, which primarily affects reading and writing skills. However, it does not only affect these skills. It explains that dyslexia is actually about information processing. Dyslexic people may have difficulty processing and remembering information they see and hear, which can affect learning. Dyslexia can also impact other areas such as organisational skills.
Dyslexia does not come with ‘one size fits all’ symptoms and, for that reason, it is very important that employers are on the lookout for employees who may be affected by the condition.
Two recent cases illustrate the issues that an employer can face if they do not make adjustments when they are aware or should have been aware, that an employee suffers from dyslexia, as well as other neurodiverse conditions.
The claimant was a security guard who suffered from dyslexia as well as Asperger’s Syndrome. One of the ways it impacted him was difficulty in reading digital clocks and maintaining organisation. He was repeatedly late for work. When his employer questioned this, he explained that his lateness was due to dyslexia and asked for some leeway in his start time each day. He was not offered any more work. He was successful in his claims for discrimination arising from a disability and failure to make reasonable adjustments. The requirement to be on time placed the claimant at a substantial disadvantage when compared with employees who did not suffer from dyslexia and/or Asperger’s Syndrome.
The claimant received a low score for behaviour in a redundancy selection process and was dismissed. Factors that were taken into account when scoring against this criteria included issues which were held to be a direct result of her dyslexia (such as mistakes and errors, difficulty balancing workload, and drafting emails in bullet points). The respondent had failed to make reasonable adjustments to the scoring process, to remove the disadvantage suffered by the claimant by reason of her disability of dyslexia.
These cases are a reminder to employers of the importance of considering what reasonable adjustments can be made to accommodate employees with neurodiverse conditions throughout the lifespan of employment.
Consider whether technology or equipment could assist a neurodivergent employee in fulfilling their potential.
Review the physical environment of the workplace to assess whether it is suitable for neurodivergent employees.
Consider different ways of communicating and be mindful of how communications may be interpreted.
Raise awareness internally and ensure that all levels of employees are aware of legal obligations.
Consider reasonable adjustments from recruitment and throughout employment.
Contact Nicola to discuss this further.
