This case held that 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.
Employment Appeal Tribunal, 2007. Full judgment: bailii.org.
Summary and comment
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.
The officer had successfully produced complex reports and dealt with huge amounts of paperwork without realising he had dyslexia. The employment tribunal held he was not disadvantaged with reference to the ‘ordinary average norm of the population as a whole’, and so did not have a disability. In the high pressure exam for promotion, he would be at a substantial disadvantage to his non dyslexic colleagues, but the exam was not a normal day-to-day activity.
The EAT overruled this. The exam was a ‘normal day-to-day activity (see below: High pressure exam was ‘normal day-to-day activity’). The tribunal had accepted that he should be given 25% extra time in the exam. This must mean he was disabled within the DDA. The EAT said:
38….Where it is not disputed that 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.
This case is a very important on how far something counts as a ‘disability’. A high pressure promotion exam would not normally be thought of as a ‘normal day-to-day activity’. The EAT considered itself bound by the European Court decision in Chacón Navas, and said that day-to-day activities should be given a meaning which includes activities relevant to participation in professional life.
How is this relevant to stammering? It seems to me on the basis of this case there is a strong argument that job interviews, presentations, oral assessments and such like which are part of a recruitment/promotion process are normal day-to-day activities. Similarly, it could be argued that oral activities which are part of a job will be normal day-to-day activities if they would not otherwise be – such as giving presentations. (Giving presentations may be a normal day-to-day activity anyway, as being found across a range of jobs.) A stammer will often have a substantial effect in more ‘normal’ situations anyway, such as on phone calls, so as to be a ‘disability’ even without the Paterson case. However, the case may help if an employer is raising doubts on whether the effects of a stammer in more usual situations are more than minor or trivial.
A person who stammers could argue, for example, that s/he finds speech particularly difficult in job interviews, and that this is relevant to it being a ‘disability’.
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 commended on occasions by his supporting officer for writing good and clear reports. 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 are successfully supported in both criminal and disciplinary proceedings… He has consistently produced work of high quality. This has been achieved 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 had “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’, so he had a disability within the DDA.
38. In our judgment the [claimant] is correct. Where it is not disputed that 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.
39. Moreover, [the employer’s counsel’s] approach misconstrues the task which Tribunals must carry out. As we have said, 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. Rather, it is the comparison between what the individual can do and would be able to do without the impairment….
In more detail:
EAT: High pressure exam was ‘normal day-to-day activity’
The claimant 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 claimant 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 with the claimant. Firstly, the claimant would succeed simply taking domestic law on its own, without reference to the decision in Chacón Navas:
66. …In our view carrying out an assessment or examination is properly to be described as a normal day to day activity. Moreover, as we have said, in our view the act of reading and comprehension is itself a normal day-to-day activity… (Note: The claimant had argued that “it is neither abnormal nor unusual for someone to take high pressure examinations, in some cases for the purposes of gaining promotion. On the contrary, it is a usual, if irregular, everyday activity.”)
In any event, whatever ambiguity there may be about that, in the decision of the European Court in Chacón Navas was decisive of this case:
67. We must read s1 [of the DDA] in a way which gives effect to EU law. We think it can 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 EAT rejected an argument by the employer that the EATwas not bound by Chacón because the date by which Member States must implement the relevant EU directive was after the time the case arose (para 72-78).
(For my comment on this, including implications for stammering, see above My comment.)
EAT: Whether effect is ‘substantial’ – comparison with population at large
Paragraph A1 of the then statutory guidance [the 2011 guidance is similar] said “The requirement that an adverse effect be substantial reflects the general understanding of ‘disability’ as a limitation going beyond the normal differences in ability which may exist among people.” The employment tribunal had held that although the claimant here was disadvantaged when compared to his non-dyslexic colleagues, he was not disadvantaged with reference to the “ordinary average norm of the population as a whole” (para 16 & 18).
The EAT rejected the tribunal’s approach. It said the tribunal should look at effect of the impairment on the particular claimant, compared with how that individual would be without the impairment:
27. In our judgment A1 is intending to say no more than that in the population at large there will be differences in such things as manual dexterity, ability to lift objects or to concentrate. In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. As A2 and A3 make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.
68. …In our judgment the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross section of the population, then the effects are substantial.
69. It follows that this ground of appeal succeeds. Once the Tribunal had accepted that the [claimant] was disadvantaged to the extent of requiring 25% extra time to do the assessment, … then it inevitably followed that there was a substantial adverse effect on normal day-to-day activities.
So when assessing the effect of the impairment, the comparison is not with the population at large. One looks at the effect of the impairment on the ability of that individual, comparing how he is with the impairment to how he would be without it. But the effect is ‘substantial’ if that effect on the individual is more than the kind of difference one might expect taking a cross section of the population.
Note that since Equality Act 2010 there is a statutory definition of ‘substantial’. However, this approach in Paterson was adopted in the Equality Act case of Aderemi v London and South Eastern Railway.
Specifically as regards stammering, it is helpful that the court emphasises the importance of whether the difference is more than the kind one might expect taking a cross section of the population is helpful. It can be argued that having a difficulty getting words out, like a stammer (even a mild one), is not the kind of thing found in the population generally who do not have a stammer. See Is any stammer a ‘disability’?
EAT: Normal day-to-day activities nearly always affected, in the case of a listed capability
Citing the Ekpe case, the EAT said, :
25. We would also observe that in practice if the impairment is of a kind described in para 4 of Schedule 1 [of the DDA], then it is almost inevitable that it will have an adverse effect on normal day-to-day activities….
For more on this, see Ekpe case>’Normal day-to-day’ activities are nearly always affected, in practice. This should apply to ‘speech’, as it was one of the listed capabilities. Whilst the EAT says there will almost inevitably be an effect on normal day-to-day activities, the tribunal still has to consider whether that effect is ‘substantial’, ie more than minor or trivial.