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Paterson v Commissioner of Police of the Metropolis

2007, Employment Appeal Tribunal

Summary and comment
Facts
Employment Tribunal decision (lower court)
Employment Appeal Tribunal decision

A senior police officer had a 'disability' within the DDA because of the effect his dyslexia had in a high pressure exam for promotion. The exam was a 'normal day-to-day activity'. The court would have said that anyway under domestic law, but was also bound by the European case of Chacón Navas. Furthermore, the Tribunal's task was not to compare the performance of the employee with the average person in the population, but to compare what the individual can do with what he could do without the impairment.

Summary and comment

This case is a very important on how far stammering and other impairments count as a 'disability', assuming the decision not overturned on appeal and is followed in other cases.

The Employment Appeal Tribunal (EAT) found that a senior police officer had a 'disability' within the DDA because of the effect his 'mild' dyslexia had in a high pressure exam for promotion. He had successfully produced complex reports and dealt with huge amounts of paperwork without realising he had dyslexia. The dyslexia may have started to show more because demands increased. It had been found he should be given 25% extra time in a selection process to become a superintendent, and on appeal it was held that this must mean he was disabled within the DDA.

The case is important firstly because in holding a high pressure promotion exam to be a 'normal day-to-day activity', it goes well beyond what many people would previously have considered to be a 'normal day-to-day activity'. The EAT considered itself bound by the European Court decision in Chacón Navas, which focused the meaning of 'disability' on whether the impairment hinders participation in professional life over a long period. The EAT said that day-to-day activities should therefore be read as including activities which are relevant to participation in professional life. Applying this to stammering, in a recruitment/promotion situation (or presumably in the job), effects of a stammer which are more than minor or trivial in eg presentations, oral assessments, or the interview itself may be sufficient to make it a disability. Note that even on the previous understanding of 'normal day-to-day activity', the stammer may also have 'more than minor or trivial' effects on more normal activities such as phone calls. That would make it a disability anyway, in which case DDA protection (reasonable adjustment duty etc) would extend to presentations etc even if they are not 'normal day-to-day'.

The case is also interesting for its discussion of what is a 'substantial' effect. The EAT said that the question is not whether the person is disadvantaged with reference to the 'ordinary average norm of the population as a whole'. The tribunal must compare how that particular individual in fact carries out the activity compared with how he would do without the impairment. The effect is 'substantial' if that difference is more than the kind of difference one might expect taking a cross section of the population. The focus here was on the fact that it is the effect on the individual which must be taken. Even so, the test (based on official Guidance) of whether the difference is more than the normal differences in ability which may exist among people may perhaps help the argument that virtually any stammer is a disability. The argument is that stammering dysfluencies, eg blocking, are likely to be different from 'normal' dysfluencies, even if they are 'minor'.

The full Tribunal decision is at www.employmentappeals.gov.uk/Public/Upload/06_0635ResfhRC-MLNLA.doc

Facts

An Employment Tribunal had found that the applicant's dyslexia did not have a 'substantial adverse effect on his ability to carry out normal day to day activities'.

He had reached the rank of chief inspector in 1999. He was described in 2001, when he sought promotion, as an able communicator - this has resulted in the production of a number of complex and detailed reports which were successfully supported in both criminal and disciplinary proceedings. He had consistently produced work of high quality, despite the tight deadlines and the demanding environment present in his current role. He would have had to deal with a vast amount of paperwork during his career of different levels of complexity.

In 2004 the applicant discovered that he suffered from dyslexia. He had achieved the rank of chief inspector without being aware of this fact. He alleged less favourable treatment and failure to make reasonable adjustments in the processes for determining whether he might be promoted to superintendent.

The expert preferred by the tribunal placed the applicant in the category of 'mild dyslexia', and recommended that Mr Paterson be allowed an additional time of 25% at each stage of the selection process. That is what the employer did. The Tribunal found that the experts

"have both to a certain extent coloured their overall conclusions about the Claimant by placing him within the context of a 'professional person' and/or 'working at an advance level'. We have absolutely no doubt at all that the Claimant's degree of dyslexic difficulties are certainly disadvantageous to him in comparison with other colleagues competing for the very senior Superintendent positions for which he himself has been competing in the last two years. These are we direct ourselves very high powered and demanding roles with no doubt very difficult and challenging role playing and related questions, tests and assessments."

One of the experts commented, in effect, that the applicant may well be finding that the degree of dyslexic difficulties which he has always had was becoming become more evident at his very senior position.

Employment Tribunal decision

The tribunal found that the dyslexia was not a disability because it did not have more than a minor or trivial effect on normal day-to-day activities. He was plainly able to carry out report writing and financial and budgetary duties. He might have some limited ability in reading small labels on produce and matters of that kind when shopping, but this was no more than minor or trivial. The correct 'comparator' assessment was with the ordinary average norm of the population as a whole. In the high pressure and (said the tribunal) by no means day to day situation of a high pressure exam, the applicant would continue to be at a substantial disadvantage to his non dyslexic colleagues. However, he was not disadvantaged with reference to the 'ordinary average norm of the population as a whole.

Employment Appeal Tribunal (EAT) decision

The EAT overruled the Employment Tribunal. The applicant's dyslexia did have a 'substantial adverse effect on his ability to carry out normal day to day activities'.

Where the employee is suffering a substantial disadvantage because of the effects of his or her disability in the procedures adopted for deciding between candidates for promotion, the only proper inference is that those effects must involve a more than trivial effect on his ability to undertake normal day to day activities. It would fundamentally undermine the protection which the Act is designed to provide were it otherwise. Accordingly once the Tribunal had accepted that the appellant was disadvantaged to the extent of requiring 25% extra time to do the assessment, it inevitably followed that the applicant had a disability within the DDA.

Furthermore, the Tribunal's task it is not to compare the performance of the employee with the average person in the population, which was the comparison the Tribunal seems to have made in this case. Rather, it is the comparison between what the individual can do and would be able to do without the impairment.

In more detail:

High pressure exam was 'normal day-to-day activity'

The applicant argued that it was neither abnormal nor unusual for someone to take high pressure examinations, in some cases for the purposes of gaining promotion. On the contrary, it was a usual, if irregular, everyday activity. He cited the Ekpe case to the effect that what is 'normal' can best be understood by defining it as anything which is not abnormal or unusual or, in the words of the Guidance, 'particular' to the individual applicant.

The applicant submitted that this conclusion was strongly reinforced, indeed demanded, by the decision of the European Court of Justice in Chacón Navas. He focused on the European Court's observation that what disability envisages are situations in which 'participation in professional life is hindered over a long period of time. That was precisely the situation here. Participation is hindered in promotion without reasonable adjustments being made to accommodate the effects of the disability.

The EAT agreed. It would have agreed simply taking domestic law on its own, without any reference to the decision in Chacón. Carrying out an assessment or examination is properly to be described as a normal day to day activity. Moreover, the act of reading and comprehension is itself a normal day-to-day activity.

Chacón Navas case

Whatever ambiguity there might be there, the decision of the European Court in Chacón Navas was decisive of this case. The Tribunal must read the UK definition of disability in a way which gives effect to EU law. That could be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.

The employer argued the EAT was not bound by Chacón because the date by which Member States must implement the relevant EU directive was after the time the case arose. Member States had an option not to apply the directive until late 2006. However the UK reported that amendment regulations taking effect on 1st October 2004 completed the transposition of the employment aspects of the Directive. The EAT said that it would be extraordinary if the legislation, designed specifically to meet the requirements of EU law, were suddenly to take on a new meaning once the period for implementing the Directive had expired. The purpose of the implementation period was to allow member states time to draft and introduce appropriate domestic legislation; it is not to deny the interpretative value of EU law, even after the domestic legislation transposing the relevant EU law has been implemented, until the permissible period has expired. For these reasons, the EAT had no doubt that it was are bound by the Chacón decision.

Whether effect of impairment is 'substantial' - relevance of comparison with population at large

Further, the employer's approach to establishing whether there the disadvantage was substantial - namely looking at whether the applicant was disadvantaged compared to the population as a whole - was misconceived.

When assessing the effect of the impairment, the comparison is not with the population at large. The proper basis is to compare the effect on the individual of the disability, looking at how he in fact carries out the activity compared with how he would do if not suffering the impairment. The effect is 'substantial' if that difference is more than the kind of difference one might expect taking a cross section of the population (paragraph A1 of the Guidance on definition of disability).

The EAT was reinforced in its conclusion by the implications of the contrary view. The purpose of the legislation, at least in part, was to assist those who are disabled to overcome the disadvantages which stem from a physical or mental impairment. The approach suggested by the employer and adopted by the Tribunal did not achieve that:

"Take the case of someone who has all the skills to be a highly successful accountant, but lacks manual dexterity. This may require that he or she should be given longer to do the relevant examinations. It would surely be no answer and would be wholly inconsistent with the purposes of the legislation, simply to say that that individual was not disadvantaged when compared with the population at large and therefore no obligation to make the adjustment arose. Yet as [the employer's representative] accepted, that is the logic of her position."

Coping strategies

Looking at the (previous, 1996) Guidance, the tribunal commented that in some cases coping strategies will prevent the impairment having adverse effects, but only where they can be relied on in all circumstances (my emphasis).

The full Tribunal decision is at www.employmentappeals.gov.uk/Public/Upload/06_0635ResfhRC-MLNLA.doc

Disability? - FAQ
'Normal day-to-day activities'
'Substantial effect' - overt stammering
Is any stammer a 'disability'?

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