An employee of Starbucks who suffers from dyslexia, has successfully brought a claim of disability discrimination in the Employment Tribunal following her employer’s treatment of her resulting from her disability.
Employment Tribunal cases relating to disability discrimination frequently have an additional layer of complexity when compared with cases concerning other protected characteristics. Whilst it is almost always obvious whether an individual has a protected characteristic such as a specific religion or belief, race or sex it is not always quite so obvious when it comes to disability. Although some conditions are automatically deemed to be disabilities for the purposes of the Equality Act 2010 (such as cancer, HIV and multiple sclerosis) the majority of medical conditions will only fall within the statutory definition of disability if it is such that it is considered a physical or mental impairment, and [that impairment] has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. It is frequently the case that an individual claiming some form of disability discrimination in the Employment Tribunal will first have to prove that their condition meets this statutory definition before they can rely on the protection which the Equality Act seeks to provide.
Dyslexia, like many medical conditions, falls on a spectrum. It can be very mild, having little or no effect on an individual day to day, or so severe that it makes tasks that would be straightforward to some significantly more difficult for a dyslexia sufferer. In addition, those with dyslexia sometimes seek to hide it or explain away their illness as being due to other issues. It could therefore be difficult for an employer to know whether a dyslexic employee is disabled under the Equality Act 2010 and therefore whether adjustments should be made to assist such an employee in the workplace. This is the situation that Starbucks found themselves in when Ms Meseret Kumulchew’s dyslexia caused her to make mistakes as a result of her difficulties with reading, writing and telling the time. Starbuck’s responded by giving Mr Kumulchew lesser duties and telling her to retrain, she was also accused by her employer of falsifying documents. As a result of this action Ms Kumulchew’s brought claims of failure to make reasonable adjustments, discrimination arising from a disability and victimisation against Starbucks. These claims have recently been upheld by the Employment Tribunal.
Speaking to the BBC Ms Kumulchew suggested that Starbucks could have alleviated the effects of her dyslexia by having her work checked by a colleague, having policies printed in bigger font or by using visual and physical training methods.
Given the potentially huge number of individuals who suffer from dyslexia (it is estimated by the British Dyslexia Association that one in ten people have the condition) this case demonstrates that employers need to be vigilant and not just assume that an employee has poor attention to detail or is unmotivated. It also demonstrates how important it is for those employers to identify ways of making adjustments to alleviate the effects and difficulties faced by employees with dyslexia. Employers who find themselves in similar circumstances should assess each employee’s case individually depending on the facts involved including the severity and effect of the condition and the type of job the employee is employed to do.
It is also important to remember that employers are not under a limitless obligation to make adjustments; they only need make such adjustments as are reasonable. Again however, what is reasonable can be a difficult question to answer. Taking Ms Kumulchew’s suggested adjustments by way of example it would appear to be relatively easy to print employee policies in large font – so that is likely to be a reasonable adjustment. Comparatively it would seem to be much more onerous, and therefore perhaps less likely to be reasonable, to require all of her work to be checked by a colleague (since this could potentially double the cost of employing such an employee). Unfortunately for employers the decision on what is and what not reasonable can only ultimately be made by an Employment Tribunal. Therefore it is often advisable for employers who find themselves in a similar position to Starbucks to adopt an initially cautious approach and try to come to a mutually satisfactory agreement on adjustments. Of course that is not always possible and it is those issues which can frequently lead to legal disputes.
Should you need advice on matter concerning employees who may fall under the statutory definition of disability please contact Andrea London or Richard Freedman on 0207 955 0880.