In this article...

• The background
• The facts
• The decision
• What does it mean for me?

The EAT has recently considered whether a senior police officer’s dyslexia, which impeded his performance in a promotion exercise, had a substantial adverse effect on his normal day-to-day activities. Andrew Davidson reports.

The background

The Disability Discrimination Act 1995 (DDA) makes it unlawful for an employer to discriminate on the grounds of an employee’s disability. A disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.

The DDA provides that an impairment affects an individual’s ability to carry out normal day-to-day activities only if it affects one of a number of specified functions, including “memory or ability to concentrate, learn or understand”.

When determining whether an employee has a disability, the employment tribunal will have regard to the “Guidance on matters to be taken into account in determining questions relating to the definition of disability”, issued by the Secretary of State.

The recent case of Paterson v The Commissioner of Police of the Metropolis concerned a number of issues relating to the definition of disability, including whether written assessments undertaken as part of a promotion exercise amounted to “normal day-to-day activities”.

The facts

Mr Paterson worked for the police force as a chief inspector. In 2004 he was diagnosed as dyslexic. In order to achieve promotion to superintendent he needed successfully to complete a written assessment. He brought a claim in the employment tribunal alleging that he had been discriminated against for a reason relating to his disability and that his employer had failed to make reasonable adjustments in relation to the promotion process. While some adjustments had been made in his favour, he claimed that they were insufficient.

The employment tribunal considered whether the dyslexia had a substantial adverse impact upon Mr Paterson’s normal day-to-day activities. It accepted medical evidence to the effect that Mr Paterson had mild dyslexia and should be allowed 25 per cent additional time at each stage of the promotion process, an adjustment which his employer had made.

With regard to Mr Paterson’s day-to-day activities, the tribunal noted that he had achieved a senior position in an organisation which placed considerable emphasis on paperwork and on the accuracy, promptness and clarity of the written word. He was clearly able to write reports and carry out bookkeeping duties. The tribunal concluded that any adverse effect on these day-to-day activities was not substantial.

The tribunal acknowledged that Mr Paterson would be at a clear disadvantage in relation to promotion when compared with his non-dyslexic colleagues, but thought that this disadvantage could be compensated for by good employment practice.

Furthermore, the tribunal considered that a promotion assessment or examination was not a normal day-to-day activity, and although Mr Paterson was disadvantaged compared with his non-dyslexic colleagues, he was not disadvantaged with reference to the average person in the population as a whole.

On this basis the tribunal found that Mr Paterson was not disabled. Mr Paterson appealed.

The decision

The Employment Appeal Tribunal (EAT) upheld the appeal. Once the tribunal had accepted that Mr Paterson was disadvantaged to the extent of requiring 25 per cent extra time to carry out the promotion assessment, the only proper inference was that there was a substantial adverse effect on his ability to undertake normal day-to-day activities.

In the EAT’s view, the tribunal had been wrong to compare the employee’s performance with that of the average person in the population. It should have made a comparison between what the individual could, in fact, do and what he could have done without the impairment.

The EAT added that normal day-to-day activities include activities which are relevant to participation in professional life. Accordingly, carrying out an assessment or examination was properly to be regarded as a normal day-to-day activity.

What does it mean for me?

		Remember that dyslexia or learning difficulties can constitute a disability for the purposes of the DDA. Where either of these impairments places an employee at a substantial disadvantage, employers should consider making reasonable adjustments.
		Be alert to the possibility that an employee may have a substantial impairment, even where the individual appears to be coping with the demands of his or her position. In this case, the claimant had had a successful career within the police force and had coped well with the administrative demands of his position. Nevertheless, he was found to have a disability.
		Previous case law has raised the possibility that specialist tasks do not amount to “normal day-to-day activities” for the purposes of the DDA. The EAT’s decision suggests, however, that activities relevant to participation in professional life will normally fall within the definition.