Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNAL

Case ref: 1151/06

CLAIMANT: Francis Lawlor

RESPONDENT: 1. Police Service of Northern Ireland

2. Mark Kernohan

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:

Miss E McCaffrey Chairman (sitting alone):

Appearances

The claimant appeared in person and represented himself.

Both respondents were represented by Mr Peter Coll BL, instructed by the Crown Solicitor's Office.

A The Issue and the Relevant Law

The issue to be decided in this case was whether the claimant is disabled within the meaning of Section 1 of the Disability Discrimination Act 1995 ("The DDA 1995")

The relevant law is to be found in Schedule 1 of the DDA as amended and relevant case law.

The test I need to apply in relation to this case is that set out in the case of Goodwin –v- The Patent Office [1999] IRLR 4. That decision makes it clear that I must apply four tests in deciding whether or not the individual is disabled within the meaning of Section 1 of the DDA 1995. The first is whether or not the claimant suffers from a mental or physical impairment within the meaning of the DDA 1995.

At the outset it was confirmed by the respondent that the claimant had been diagnosed as suffering from dyslexia/dyspraxia as a result of a psychologist's report received from Dr Joan McQuoid. The report had been requested by the first named respondent after the claimant had joined the Police Service of Northern Ireland (PSNI) as a student Police Officer and had been found to have difficulties in carrying out his training course. There is no issue therefore as to the nature of the mental or physical impairment from which the claimant suffers, and I confirm that the impairment concerned is a "long term" impairment within the meaning of Section 1 of the Disability Discrimination Act 1995 as dyslexia is a life long condition.

The crucial issues for me to consider are the third and fourth tests in Goodwin, namely whether the claimant's dyslexia has a substantial effect on his ability to carry out day to day activities and whether that effect is adverse. The categories of "day to day activities" covered by the disability legislation are set out in paragraph 4 of the schedule 1 of the DDA 1995. In this case the claimant identified that the day to day activities which for him were most affected were (1) manual dexterity (2) speech, hearing and eyesight and (3) memory or ability to concentrate, learn or understand.

I will therefore concentrate both my findings and my comments on those issues.

B The Facts

On the basis of the evidence given by the claimant and the Dr McQuoid's report, I make the following relevant findings of fact. The claimant made the case that he was most affected in his ability to carry out normal day to day activities in three areas identified in paragraph 4 of the Schedule 1 to the DDA 1995 namely (1) manual dexterity (2) speech, hearing and eyesight, and (3) memory or ability to concentrate, learn or understand. Accordingly I will focus on these particular areas.

I confirm that from my observation of the claimant that he gave his evidence fluently and presented his case in an able manner, given that he is not a professional representative and is not a qualified lawyer. He used sophisticated vocabulary accurately and appeared to have no difficulty in understanding the questions which were put to him or in giving detailed answers to them.

The assessment of the claimant by Dr Joan McQuoid of the University of Ulster (a report carried out at the request of the PSNI) found that claimant had high average verbal skills with particular strengths in spoken comprehension whereas he had weak spatial ability, speed of hand, eye co-ordination and short term memory for letter/number sequence. Her conclusion was as follows:

"Frank is a young man with a significantly stronger verbal comprehension than his other abilities and he has particularly weak speed of hand/eye co-ordination, memory for letter/number strings and spatial ability. His reading accuracy, comprehension and spelling are all of average standard but nevertheless poorer than would have been expected given his verbal ability. It is in his writing skills that he would appear to have most difficulties especially when he has to write at speed, therefore it is highly likely that he has specific learning difficulties of a dyslexic/dyspraxic nature".

(1) Manual Dexterity

In this context the claimant said that he had difficulty carrying out tasks such as painting and decorating at home and assembling flat-pack furniture. He indicated that he often had to give up on such tasks and asked friends or neighbours for help or had this service carried out by a professional person. He was not skilled at washing dishes and his wife often had to carry out these tasks.

Notwithstanding this, the claimant had worked for some years in his father's butcher's shop. Although he was not a trained butcher and did not carry out actual butchery duties, nevertheless he served customers, used the till and packaged meat for customers. He also carried out deliveries in the shop van. He had also worked as a bus driver, having gained the appropriate licence, and drove various routes involving journeys of up to 200 kilometres a day. Most recently he had started work as a porter at the Erne Hospital, Enniskillen. In his duties there he had to be available to answer a bleep, operate a telephone to answer calls and take instructions as to where deliveries needed to be made in within the hospital complex.

(2) Speech, Hearing and Eyesight.

The claimant indicated that his main difficulty in this regard was in relation to his speech. He said that he had difficulty in pronouncing certain words and had to be careful that he pronounced words correctly. He indicated that there had been a marked loss in his confidence since his diagnosis with dyslexia/dyspraxia. Previously he had happily read the lesson at Mass when asked to do so and had always been complimented on his reading. Now he believed that he had to study more in advance, whereas previously he would have been more relaxed about it. He indicated however that he still continued to read at Mass. He indicated that he found it easier to read larger print rather than small or regular size print although there was no difficulty with his eyesight.

The principal difficulty seemed to be in fact with his written communication, which is included under this heading in the Government Guidance on disability. The claimant indicated that he had difficulty even at school in completing written work. He had always put his low marks and difficulty in completing forms down to carelessness or a lack of intelligence; whereas in fact the Psychologist's Report had made him aware that his poor performance in exams and in application forms was due to dyslexia/dyspraxia. Written work took longer when he was training as a Police Officer and ultimately the PSNI had required him to repeat a part of his course. He also had difficulty in completing practical exercises in a mock situation. For example, he had been unable to take notes in relation to the events which occurred within a given time frame. However in the hospital where he was working at the time of the hearing, the claimant had to respond to a bleep, telephone the relevant department in the Hospital to find out what they required and make a note of what was needed. He said that he was more conscious of the importance of doing this because of the Police training, but he indicated that he had not had any difficulty in taking the relevant notes.

There was no question however according to the Psychologist's Report that written work took considerably longer for the claimant and as Dr McQuoid says in her Report

"His spelling was also of average standard with errors such as suprize for surprise, enthusism for enthusiasm, consciounce for conscience. When asked to copy a few lines at speed his hand writing deteriorated and he made a transcription mistake (copy for copying). Speed also had an impact on his free writing, where he wrote about the Dublin riots in a highly intelligent fashion but in handwriting which was virtually illegible. His writing speed was slightly below that of an average adult (18 wpm) and he made 15 errors (10% error rate). Formation of his letters in cursive style was extremely poor and Frank admitted that he had to print in order to write clearly at speed".

Even when given extra time to complete written assessments during his Police training, the claimant encountered significant difficulties. In February 2006 he was placed on level one performance below standard (PPS) having accrued more than three unsatisfactory grades with regard to paperwork and practical exercises. He was given extra time to make improvements but was unable to meet the required standards.

(3) Memory Or Ability TO Concentrate, Learn Or Understand

The claimant indicated that he had difficulties in retaining and processing information which he said was the result of his dyspraxia. Dr McQuoid's Report did not discuss the question of his dyspraxia in any particular detail nor did she give a definition of dyspraxia. However on seeking a definition of this condition, I found the following definition in the Oxford Concise Medical Dictionary:-

"Dyspraxia. An inability to make skilled movements with accuracy. This is a disorder of the cerebral cortex resorting in the patient's inability to organise the movements rather than clumsiness due to weakness, century loss or disease of the cerebellum. It is most often caused by disease of the parietal lobes of the brain and sometimes by disease of the frontal lobes".

It does not therefore appear to me that dyspraxia is a relevant consideration in relation to the claimant's ability to process information but this may well be part of his dyslexia condition. In this regard Dr McQuoid's identified the claimant's "working memory" as being in the 42^nd percentile of the population. She indicated that his processing speed was at the lowest of all of his scores, placing him in the eighteenth percentile of the population. On cross-examination the claimant conceded that he was able to follow instructions within the hospital context and pointed that he was much better in dealing with verbal matters than written instructions. He said that he often had to read and re-read memos sent to staff within the hospital to check that he had understood the content whereas he had no such difficulty with verbal instructions. However he did consider that it took him longer to make written notes of instructions to jog his memory.

Decision

I have already referred to the relevant sections of the Disability Discrimination Act 1995 (the DDA). I have also considered the relevant case law, including the recent decision of the Employment Appeal Tribunal in the case of Paterson v Commissioner of the Metropolitan Police (MICOAT/0635/06) and Whitbread Hotel Company Limited v Bayley [2006] All ER (D) 344. Given Dr McQuoid's comment that it is "highly likely that he (the claimant) has specific learning difficulties of a dyslexic/dyspraxic nature", I consider that the claimant in this case does not have severe dyslexia and as such is not automatically entitled to be treated as disabled, as in the case of Bayley.

I further refer to the relevant provisions of the "Guidance to be taken into account in determining the questions relating to the definition of disability" ("The Guidance") issued by the Department of Economic Development. Dyslexia is specifically referred to in the Guidance at paragraph A 8 as follows:

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

In relation to the day to day activities to which the claimant referred, the Guidance makes the following comments:-

Manual Dexterity

This is covered in section C15 of the Guidance. This covers the ability to use hands and fingers with precision. Account should be taken of the extent to which a person can manipulate the fingers in each hand or co-ordinate the use of both hands together to do a task. Examples of the matters which it would be reasonable to regard as having a substantial adverse effect in this context would be loss of function in one or both hands so the person cannot use the hand or hands or the ability to press the buttons on keyboards or keypads but only much slowly than is normal for most people.

In this case the claimant maintained that his inability to carry out tasks such as painting and decorating and assembling flat pack furniture indicated that he lacked manual dexterity. However I find that his manual dexterity was in fact not substantially adversely affected by his dyslexia and dyspraxia. He was able to carry out tasks in the butcher shop including serving customers and operating a till. In his present employment, he is able to operate a bleeper and a telephone and to move items from one department in the hospital to the other. He is obviously also able to use a pen as he did at the Tribunal. Accordingly I find that the claimant does not suffer from a loss of manual dexterity which has a substantial adverse effect in his ability to carry out day to day activities.

Speech, Hearing and Eyesight

The guidance makes clear at paragraph C19 that this covers the ability to speak, hear or see and includes face to face, telephone and written communication.

There is no difficulty in the claimant communicating verbally. Indeed it is clear from his appearance at the tribunal that he spoke fluently, coherently and using a wide range of vocabulary. There was therefore no difficulty at all in this regard. Equally the claimant did not claim that he had any difficulty in relation to his hearing or his eyesight. He did however say that he had difficulty in written communication. This was clearly borne out by his experience within the Police Service when he had to repeat training because of his inability to complete written work or in some cases to complete practicals because of shortcomings with his written work. This was also confirmed by the assessment carried out by Dr McQuoid. The claimant needed substantially more time than his colleagues to complete his written work. His spelling was not always accurate and his writing on occasion was difficulty to read.

The respondent's representative made the point that taking a coherent note in a mock situation was a specialised type of activity important to effective Police work, but not necessarily a day to day activity for most people. I do not agree with this. While there is no doubt that taking an accurate note of an incident would be of prime importance in Police work, it is important in other areas of activity and work as well. Writing down a telephone message, making a note of a task which has to be carried out or preparing a list, or leaving a note for a friend or colleague are all part of day to day activities. In the claimant's case, he could do this things only with difficulty and much more slowly and painstakingly than a non-dyslexic sufferer. Accordingly, in this respect I find that his dyslexia did have a substantial effect on his ability to carry out the day to day activities.

Memory Or Ability To Concentrate Or Understand

This is covered in paragraph C20 in the Guidance. The guidance indicates that account should be taken of the person's ability to remember, organise his or her thoughts, plan the course of action and carry it out, take in new knowledge or understand spoken or written instructions. This includes considering whether a person learns to do things significantly more slowly than as normal.

In the claimant's case he had difficulty in making notes within the given time frame. Dr McQuoid's report specifically indicated that when the claimant was asked to copy a few lines at speed his handwriting deteriorated and he made a transcription mistaken. His writing speed was slightly below that of the average adult and he made 15 errors (a 10% error rate). His copying speed was in the bottom 12-22% of the population and in free writing he made a number of errors. The advice given to him was that he would be advised to use a computer and if he had to write by hand, he should continue to print for the sake of clarity. He was advised to obtain an electronic spell checker or an electronic dictionary to help his spelling and the psychologist also recommended that he should learn definitions by heart and learn in small chunks to avoid "information overload". It is clear therefore that she perceived that he had considerable difficulties in this area. This was borne out by the claimant's evidence when he said that he had difficulty in making notes and "processing information". He said that he needed to make notes to remind himself but it took him time to do this and he was concerned in case he would forget something.

In the context of the claimant's Police training, he also had difficulty in completing work within an appropriate time frame. He had to repeat some of his assessments, both written and practical and was graded as being "performance below standard". Again the respondent argued that the claimant had not shown that his performance was lacking in the context of "day to day activities". However the psychologist Dr McQuoid noted that the claimant's performance was in the bottom 25% of the population and that he needed additional time to make written notes or to write down matters. This she perceived as being part of his performance. She also noted that his memory was poor and that in this regard he was in the lowest 18 percentile of the population.

The extra time needed to complete writing operations and to check and correct spelling obviously meant that the claimant had to take substantially longer to complete written work and exercises. He was given extra time at the Police Training College to do this, but was still unable to complete his work satisfactorily. There may be many conditions in which it is important for an individual to be able to recall matters from remembering a message or recalling, or concentrating to learn an activity, whatever the work context. I therefore do not agree that the claimant had difficulty only in the context of his specialised Police training. It is clear from the Dr McQuoid's Report that his difficulties were ongoing and considerable.

In light of Dr McQuoid's Report and the evidence given by the claimant, I find that the claimant suffered a substantial adverse effect on his day to day activities in relation to his ability to write and communicate in written form. I also find that his ability to learn and understand was impaired by his dyslexia and this impairment was substantial.

I further find that the effect was adverse to the claimant, because despite his high verbal ability, certain areas of work were not open to him because of his limited ability to write and communicate in writing, and his ability to memorise and retain information. The claimant himself recognised this when he indicated that he had hoped to go into Police work because he thought he would be able to use verbal communication more and had not realised the level of written work which would be required.

Accordingly I find that the Claimant is a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995, and the case will proceed to a full hearing.

Chairman:

Date and place of hearing: 1 November 2007, Belfast

Date decision recorded in register and issued to parties: