Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 851/06

CLAIMANT: Jennifer Johnston

RESPONDENTS: 1. Royal Group of Hospitals and Dental Hospitals

Health and Social Services Trust

2. Queen's University Belfast

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant is a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 (as amended) and the case will proceed to a full hearing on the merits.

Constitution of Tribunal:

Chairman (Sitting Alone): Miss E McCaffrey

Appearances:

The claimant was represented by Mr Michael Potter, Barrister-at-Law, instructed by the Equality Commission.

The first-named respondent was represented by Mr Mark Robinson, Barrister-at-Law, instructed by MSC Daly Solicitors.

The second-named respondent was represented by Mr Connor Hamill, Barrister-at-Law, instructed by Queen's University, Belfast Legal Service.

1. The Issue

1.1 This was a pre-hearing review in relation to the issue of whether or not the claimant was a disabled person within the meaning of the Disability Discrimination Act 1995 ("The 1995 Act").

2. The Facts

2.1 I heard evidence from the claimant and also from Mr Eakin, Educational Psychologist. I would like to thank both of them for the detailed and frank way in which they gave their evidence. I formed the view that the claimant was an intelligent and articulate young woman who answered all the questions put to her clearly and without any apparent difficulty in understanding.

2.2 The claimant suffers from dyslexia and this was initially diagnosed when she was at primary school. At secondary school, she was given some help with her reading and spelling and ultimately was given additional time to complete exam papers. The claimant went to university at Queen's University, the second-named respondent, to study for a nursing diploma and successfully completed her course of study. When she started at Queen's, she was seen by Mr Fee, Educational Psychologist, who confirmed that her test results were "strongly indicative of dyslexia". He recommended that the claimant be given extra time to complete assignments and be given sympathetic consideration for her spelling and written expression, due to her difficulties with spelling. The claimant was given 25% extra time to complete her exam papers, and this was really the only additional support which she was given at university.

2.3 The claimant described her difficulties as being mainly with spelling, in particular recognising new words. She could not "sound out" a word phonically but had to memorise the shape of it to learn how to spell it. She said that sometimes she wrote letters down the wrong way round and if she was in a rush, she quite often misspelled words. While she could read reasonably well if she was given sufficient time, she quite often got words the wrong way round and then had to correct herself from the context. She could not read handwritten notes easily and had difficulty taking notes in class at university. If she was listening to a conversation, on occasion she got the words wrong and had to "re-arrange" the words automatically in her head to get the correct sense of what was being said.

2.4 In the context of her work as a nurse (which was the subject of this claim), she said that she needed to check drugs a couple of times to be sure that they were correct, which took additional time. She successfully completed assessments which required her to identify the correct drugs, calculate dosages and write out instructions for patients as to how and when to take drugs, although her final assessment was deferred because of difficulties with her handwriting. She had to go slowly to read handwritten notes or assessments on patients and this also took additional time. She would re-check drugs herself or with a colleague. During a three month placement, which was part of her diploma course, the claimant made only two errors which were noted: one was an error in misreading the name of a drug and the other was when she misspelled the word "meningitis". This indicates that her coping strategies were effective and, for the most part, successful. When she was asked how often she had to read or write under time pressure, the claimant agreed she did not have to do this a lot at present, working as a childminder. However, on a hospital ward, she observed there were always things to be written or read.

2.5 Mr Eakin had carried out detailed tests on the claimant. He explained that he had focused on three main areas. First of all, he had given the claimant a graded word reading test; secondly, he had given her a word spelling test and then thirdly, he had given her tests in relation to word and number reading efficiency. I set out his conclusions in some detail because they are relevant to my findings on the issue before me. The quotations in the next few paragraphs are from Mr Eakin's report.

2.6 The first of these tests indicated that Miss Johnston's reading accuracy and speed were average. Mr Eakin's finding was that she was able to use her high intelligence to master compensatory strategies. During the test, she had misread a word, but then had corrected herself from the context. He gave her an average reading age equivalent of 16 years. In terms of spelling, she had a relatively strong outcome when the spelling test was performed without any pressure of time limits or competing cognitive demands. Her spelling age was 14 years and 7 months. Mr Eakin commented that using single word, unpressurised conditions, Miss Johnston's spelling accuracy fell just outside the average age for a young adult but well below the level which would normally be expected from a person with her high level of intelligence, especially verbal intelligence and text reading ability.

2.7 The further tests which he carried out revealed that these apparently minor functional weaknesses in word reading and spelling became highly significant under more taxing conditions. The second test required a number of differing skills to be applied at the same time, including a reading test and then asking the claimant to write a précis of the article she had just read. Here the claimant showed rather more errors than before and the outcome was that "these results place an otherwise linguistically highly able student within the lowest 5% of the population". Reading, writing and understanding could be achieved by the claimant, but with difficulty. She needed more time than a non-dyslexic person and was more likely to make errors. Because of the additional time required, Mr Eakin suggested a person with dyslexia was likely to suffer fatigue in doing these activities, although the claimant did not mention this. The conclusion which Mr Eakin reached was that -

"Although she [the claimant] has been able to during her education to master and use a range of functional compensatory strategies to mitigate the effect of her specific developmental dyslexia (STD) on her reading and to a lesser extent her spelling, mental impairments which have been caused by her STD do, in my opinion, constitute a disability within the definition set down in the DDA, especially under demanding performance conditions (which do not permit the use, or reduce the efficiency, of her compensatory strategies – see above)".

Mr Eakin pointed out that his view the coping strategies adopted by the claimant were almost automatic and that she was not in fact conscious of "compensating".

1. 8 When questioned about the severity of dyslexia from which the claimant suffered, Mr Eakin said it was difficult to be specific because there was no recognised spectrum of dyslexia. This was mainly because there were different functions to be tested to try and assess the level of difficulty experienced by an individual. He pointed out that because of the claimant's coping strategies at a superficial, functional level of reading when she was able to read mainly from text, one would think that there was nothing wrong with her reading. She would however miss subtleties in the text. In fact the other tests revealed that the claimant fell within the bottom 5% of the population when her other skills were tested. Some functions were very weak, but in other areas he said she was relatively strong. When pressed further, Mr Eakin agreed that in very severe cases of dyslexia, the sufferer may have difficulty in reading or writing anything. If someone such as the claimant was able to complete their education with only accommodation in relation to time, it was suggested to Mr Eakin that this would indicate that her level of dyslexia was less severe. His response to this was that her condition was "less severe and well compensated". On the basis of the evidence before me, I find as a fact that the claimant suffers from moderate dyslexia, for which she has developed coping strategies which are, by and large, effective.
2. 9 The claimant herself agreed that she did not consider herself disabled and, when completing a job application form for a post with the first-named respondent, had not replied "yes" to the question as to whether she was disabled. She indicated that she did not consider her dyslexia would affect her work as a nurse.

3. The Relevant Law

3.1 The relevant law is to be found in Section 1 and Schedule 1 of the Disability Discrimination Act1995 ("the 1995 Act"). Section 1 of the 1995 Act provides as follows:

"1. (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and adverse long-term adverse effect on his ability to carry out normal day–to-day activities.

(2) In this Act "disabled person" means a person who has a disability."

3.2 As identified by the Court of Appeal of England and Wales in the case of Goodwin -v- The Patent Office [1999] IRLR 4; there are four questions to be addressed in deciding whether a person is disabled within the meaning of the 1995 Act.

1. Does the claimant suffer from a mental or physical impairment?

2. Does the impairment have an adverse effect on his/her ability to carry out day-to-day activities within one or more of the categories set out in Schedule 1 to the 1995 Act?

3. Is the adverse effect substantial?

4. Is the adverse effect long-term, ie has it lasted, or is it capable of lasting for at least 12 months?

3.3 All the parties agreed that dyslexia is a recognised mental impairment within the

meaning of Section 1 of the Disability Discrimination Act 1995. It was also agreed by all parties that the condition was a long term condition: in other words, dyslexia is a life long condition from which an individual will suffer. So there are two outstanding issues which I have to consider. The first of these is whether the claimant's condition has an adverse effect on her ability to carry out normal day-to-day activities and the second is whether or not the adverse effect is "substantial".

3.4 Before turning to these questions however I wish to refer to the case of Whitbread Hotel Company Limited -v- Bayley [2006] ALL ER (D) 344 a decision of the Employment Appeal Tribunal given by Judge McMullen QC. In that case, the EAT addressed the question of whether, in a case of severe dyslexia, the tribunal was obliged to apply the tests set out in Goodwin. Referring to the guidance issued by the Department of Trade and Industry entitled "Guidance on matters to be taken into account in determining questions relating to the definition of disability." ("The Guidance"), Judge McMullen noted that in Goodwin, the Court of Appeal had observed that the guidance was not there to create further hurdles for a claimant. He went on,

"It seems to me that once it is accepted that there is severe dyslexia, then there is disability within the meaning of the Act. To an extent, that was accepted in debate by Mr Peacock, but does this stultify the role of an Employment tribunal? In my judgment, it does not. It is still open for examination as to whether or not the methodology was correct in arriving at the judgment of a clinical diagnosis of severe dyslexia. What a particular person may understand to be severe may also be explored. But once it has been accepted on the evidence that there is severe dyslexia, it follows from the way that that this is presented in the Guidance that it is not necessary to dwell further on the examples. Paragraph C12 of the Guidance makes it clear that by a grouping together of other forms of disability from which is obvious if a person has one of these conditions, they will suffer an impairment of normal day to day activities which is substantial."

3.5 Paragraph C12 says that

"Examples of effects which are obviously within the definition are not included below. So, for example, inability to dress oneself, inability to stand up, severe dyslexia or a severe speech impairment would clearly be covered by the definition and are not included within the examples below. The purpose of these lists is to provide help in cases where there may be doubt as to whether the effects on normal day to day activities are substantial."

3.6 In this particular case, I am satisfied on the basis of the evidence given both by the claimant and by Mr Eakin that it would not be appropriate for me to accept without more that the claimant suffers from severe dyslexia and should therefore immediately be treated as a disabled person within the meaning of the 1995 Act. Mr Eakin's evidence was that her dyslexia was "less severe and well compensated." I have made a finding of fact that the claimant's dyslexia was moderate. It is therefore essential that I consider the Guidance and the tests set out in Goodwin before reaching a conclusion in relation to this matter.

3.7 The first question to consider is whether the claimant's condition has an adverse effect on her ability to carry out normal day to day activities. In the case of dyslexia, the day- to-day activity at issue is set out in Schedule 1 paragraph 4 of the 1995 Act which provides as follows:-

"4. An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities if it affects one of the following:-

(g) memory or ability to concentrate, learn or understand."

3.8 The Guidance specifies at paragraph C20 that

"Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than as normal. Account should be taken of whether the person has persistent and significant difficulty in reading text and standard English or straightforward numbers."

3.9 However account should also be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of impairment on normal day-to-day activities. Paragraphs A7 and A8 of the Guidance continue,

"If a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities, the person would no longer meet the definition of disability.

"A8. In some cases people have such "coping" strategies which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress). If it is possible that a person's ability to manage the effects of an impairment will break down so that the effects will sometimes occur, this possibility must be taken into account when assessing the effects of the impairment."

3.10 The correct approach is for me to follow the established guidelines and apply the Goodwin tests objectively. It is not conclusive that the claimant does not consider herself disabled. The tribunal must take a balanced judgment and discount measures taken to correct an impairment when assessing the substantial adverse effect on day-to-day activities (Hutton v AE Proctor Ltd. EAT Cit. BLD 1812000135)

4. Decision

4.1 In the present case, there is no doubt from the evidence given and which was not refuted in any way, that the claimant has "persistent and significant difficulty" with reading and perhaps even more so with spelling and writing. She has difficulty in recognising or learning to spell new words in particular and this translates into taking longer to make intelligible, clear notes and problems in differentiating similar words and names on labels. It also results in greater incidence of errors when working under time constraints.

4.2 Counsel for the both respondents submitted that the claimant's coping strategies were

"automatic and effortless" and that she had failed to show specifically that her day-to-day activities were adversely affected by her dyslexia. The claimant however was clear that she took longer to read and understand notes and papers and this required a lot of concentration. While her coping mechanisms were sophisticated and she was not conscious of using them, it is not correct to say they were effortless.

4.3 Mr Hamill specifically asserted that reading labels and needing to re-read them was not a day-to-day activity. I disagree. While it would be wrong of me to focus only on the specific activities required of the claimant in the context of her work as a nurse, reading labels to check the contents of a container or bottle is certainly a day-to-day activity. Whether in checking the colour of paint to be used in decorating a house or the ingredients for a recipe, or in many other situations, labels will be read and checked. Also, the ability to read a document and understand it is a day-to-day activity, objectively speaking, whether the document is a book or newspaper or a ward report.

4.4 The issue is whether the claimant's dyslexia had an adverse effect on her day-to-day activities and this is where her coping strategies come into play. Mr Eakin said the claimant compensated well for the effects of her dyslexia, but that her coping strategies tended to break down under time constraints. The Guidance says that if the effects still sometimes occur, where a person's ability to manage the impairment breaks down for some reason, this possibility must be taken into account when assessing the effects of the impairment. Some of the cases suggest that specific work activities are not relevant in this context, but only other day-to-day activities. However, where work tasks are similar to activities outside of the workplace, they should not be discounted in my view.

4.5 The claimant's ability to read, understand and assimilate information was adversely affected by her dyslexia and the coping strategy which helped correct her problems was not effective when under time pressure. While this was particularly apparent at her work as a nurse, she also said she could confuse or misunderstand words in a general conversation. Mr Robinson argued that the claimant had had no difficulty in following and answering his questions: in a stressful situation such as an Industrial Tribunal, one might expect the clamant might be affected, but she was not. That is so, but the claimant knew in advance she was coming to the tribunal and that she would be asked about her dyslexia, which gave her an opportunity to prepare. I find that the claimant was adversely affected by her dyslexia in her memory or ability to concentrate, learn or understand, by the additional time she needed to read and understand text, to learn to spell new words or names and for writing.

4.6 The final matter to be considered is whether the adverse effect is substantial. The Guidance only says that a substantial effect is one which is "more than minor or trivial." The Guidance does however point to a number of factors which can be taken into account in deciding if the effect is substantial, including the time taken to carry out an activity and the cumulative effects of an impairment. In this case, the claimant's need to re-read and check her writing and reading to ensure its accuracy must mean that it takes up to twice as long as it would take a non-dyslexic person. This, together with the fact that she was given 25% more time than her fellow students at exam time, in my opinion means that the adverse effect of her dyslexia on her day to day activities

was substantial. I find that the claimant is a disabled person within the meaning of section of the 1995 Act and the case will be listed for a full hearing on the merits.

Chairman:

Date and place of hearing: 28 June 2007, Belfast

Date decision entered in the register and issued to the parties: