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Disability Discrimination – Knowledge is Key

What happens where an employee suggests they ‘might’ have a disability in the final throes of a termination process and the employer proceeds to dismiss without giving it further consideration?

Does the employer in that situation ‘know’ that the employee is disabled, meaning that a claim for a failure to make reasonable adjustments could succeed?

Knowledge of disability was considered in the recent Employment Appeal Tribunal case of Toy v Chief Constable of Leicestershire Police.

Toy v Chief Constable of Leicestershire Police

Mr Toy worked as a Police Community Support Officer at Leicestershire Police from 2006 until he began to train as a probationer Police Officer in 2013. During the training a probationer is to demonstrate 37 different skills from an action list. The Police Constable training Mr Toy had serious concerns about his performance in a number of areas and he was transferred to another tutor. The new Police Constable training Mr Toy also had concerns about his performance and thought that he failed to take a lead in incident handling and appeared unable to handle instructions. It was concluded by the Chief Inspector that perhaps Mr Toy was being taken through the process too quickly for his abilities and an enhanced support plan was put in place. A professional development review then took place and it was decided that Mr Toy was still not ready to be signed off as fit for independent patrol.

The Chief Constable moved to dispense with Mr Toy’s employment, which he is at liberty to do if he considers that the Mr Toy is not fit to perform his duties and is not likely to become an efficient constable. During this process a three stage procedure must be followed. In the final stage of the process, Mr Toy suddenly declared that he might be dyslexic. This was the first time it had been raised. There was no suggestion of dyslexia raised during all of the years of Mr Toy’s service, in his earlier employment (Mr Toy being 52 years old), or in his academic training which has a screening test designed to detect dyslexia. Mr Toy did not provide evidence to support his statement (despite being told that he should take a test) and only raised dyslexia as a ‘possibility’.

The Chief Constable was sceptical about Mr Toy’s dyslexia and in any event did not consider that dyslexia provided an explanation for Mr Toy’s poor performance. Mr Toy was dismissed.

Mr Toy brought claims for disability discrimination and failure to make reasonable adjustments.

Decision

Prior to the tribunal hearing, the Respondent had conceded that Mr Toy was disabled under the Equality Act 2010 at the time of his dismissal; however, the Employment Tribunal dismissed all of Mr Toy’s claims.

The tribunal set out that the Chief Constable did not know that Mr Toy suffered from dyslexia or that it caused any disadvantage to him at the point of dismissal just because the ‘possibility’ of dyslexia had been raised only in the course of the termination process. It also found that the Chief Constable could not reasonably have been expected to know that Mr Toy had a disability on the same basis.

In any event the tribunal found that Mr Toy was not put at a substantial disadvantage because of his dyslexia and that making reasonable adjustments would not have prevented any disadvantage.

Mr Toy appealed but the Employment Appeal Tribunal upheld the original decision.

Comment

This is the second appeal case in quick succession which demonstrates that an employer must know (or reasonably be expected to know) that an employee is disabled for claims to succeed.

An employer will not be liable for disability discrimination where they did not know, or could not reasonably be expected to know.  The key feature of this case is that dyslexia was only raised as a suspicion very late in the process and there wasn’t any evidence available to the Chief Constable to indicate that Mr Toy was disabled or was at any disadvantage.

Employers should treat this decision with an element of caution. If an employer has reasonable grounds to suspect that an employee might be disabled, medical evidence and advice should be sought, including what effect any condition has on an employee’s ability to undertake tasks and any adjustments that can be recommended to eliminate any disadvantage caused.

If the duty to make reasonable adjustments is triggered employers need to appreciate that adjustments can come in all shapes and sizes! They could be anything from physical alterations to premises, the provision of training and support, altering procedures such as performance management or modifying working hours.

If you have an queries relating to discrimination,  or any other HR queries then please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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