At the Tribunal | |
Before
HIS HONOUR JUDGE D PUGSLEY
MR D J HODGKINS CB
MR A D TUFFIN CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR A BURNS (of Counsel) P R Hanna Solicitors Oriel House 52 Coombe Road New Malden Surrey KT3 4QP |
For the Respondents | MR C BENNISON (Employment Law Consultant) First Business Support 33 Old Woking Street West Byfleet Surrey KT14 6LG |
JUDGE PUGSLEY: This is an appeal from the decision of the Employment Tribunal sitting in London (North) in which they held that Mr Hutton was not suffering a disability within the meaning of section 1 of the Disability Discrimination Act 1995.
"To confirm the details of our discussion earlier today, unfortunately, we are unable to continue with your employment due to your word blindness. We were unaware of this when your employment commenced. As discussed, there are no alternative posts where other employment is available.
We wish you all the best for the future, and thank you for your short time with us."
"Mr Hutton was not dismissed because of his dyslexia.
He was employed as a manager and did not show any commitment, enthusiasm, dedication or interest in his work. Instead of motivating members of staff, he distracted and hindered them. He did not seem willing to learn or be shown our companies working methods, and would not adopt them fully. He showed a careless and non-compliant attitude and would not pay attention to detail. Despite, at interview Mr Hutton told us of his managerial history and he claims it speaks for itself; I did not find Mr Hutton's managerial qualities acceptable."
The Notice of Appearance went on to say that after a week after his employment terminated Mr Hutton:
"asked me to back-date a letter saying that he had been dismissed due to his dyslexia. He told me that it would help him at the job centre, and that it would help a more speedy reinstatement of his benefits. I was under the impression that this had been requested by the job centre. I did not realise that the letter that I wrote at Mr Hutton's request, was to be used against me so that he could apply to a tribunal for a disability discrimination claim.
The dyslexia had a minimal effect on the work and was not the reason for dismissal."
"3. We considered Mr Hutton's evidence that he had suffered from dyslexia from the age of 11. It did not affect his normal day to day activities. He now knows how to use a spell check and he now knows how to use a dictionary.
4. We considered exhibit A1, the report from the local Occupation Psychology Service Employment Assessment Report. Ms Bamford, the Occupational Psychologist states:
"We agreed that Sean is likely to benefit from using the spell-check and dictionary at work. Sean's worked very quickly on all of his assessments. He also told me that he often gets work done ahead of time in his job. He mentioned that very occasionally he writes order numbers down incorrectly, although he doesn't feel that this is a general difficulty. He may benefit in his work from checking and confirming written information."
5. We considered Mr Hutton's curriculum vitae and we not that since he left school in 1997 he has been in employment virtually continuously except from October 1997, when he left PJ Scott & Sons Builders Merchants. He then obtained employment with the Respondent on 1 March 1999. He has not worked since he left that employment. [We note that the reference to leaving school in 1997 is clearly wrong, Mr Hutton left school in 1977. We can do many things in a tribunal but rejuvenate someone by 20 years is not within our powers.]
6. Since leaving school Mr Hutton has taken a number of training courses including forklift truck driving, telephone sales, computer data base, onwards sales, product knowledge and kitchen planning and health and safety at work. He has completed all these courses successfully.
7. We find, as a fact on the evidence and as a matter of law, that, although Mr Hutton suffers from some form of dyslexia, nevertheless, he has been able, on his own admission, to carry out his normal day to day activities and his dyslexia does not appear to have affected the manner in which he lives or the manner in which he has conducted his employment. Whilst having a great deal of admiration and sympathy for Mr Hutton we cannot find in his favour. He does not suffer from a disability within the meaning of section 1 of the Disability Discrimination Act 1995. This application fails."
"A [person] who is disabled by dyslexia applies for a job which involves writing letters within fairly long deadlines. The employer gives all applicants a test of their letter-writing ability. … [The person] would be substantially disadvantaged compared to non-disabled people…. "
Mr Burns points out is that in the Code of Practice under "Reasonable adjustment", and the Guidance Notes, both deal with a person who has dyslexia. All we can say is that if the tribunal had had regard to the guidance notes and the Code of Practice we think it would have had some considerable impact on them when they saw that dyslexia was actually cited. Moreover, Mr Burns says with some considerable force, that the tribunal have misconstrued what is meant by day-to-day activities and if one goes to the guidance related to that definition:
"C2. The term "normal day-to-day activities" is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a "normal day-to-day activity" account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis.
C3. The term "normal day-to-day activities" does not, for example, include work of any particular form, because no particular form of work is "normal" for most people. In any individual case, the activities carried out might be highly specialised. The same is true as playing a particular game, taking part in a particular hobby, playing a musical instrument, playing sport, or performing a highly skilled task. Impairments which affect only such an activity and have no effect on "normal day-to-day activities" are not covered. The examples included in this section give an indication of what are to be taken as normal day-to-day activities."
The guidance then sets out a number and the matter which is relied upon in particular is the "memory or ability to concentrate, learn or understand" at C20. It is quite clear, looking at the decision, that although the tribunal correctly direct themselves as to the law in paragraph 7, nevertheless all the examples they quote in the decision are examples are work-related and there is no analysis in the decision of the tribunal, which is very short, of what could be said to be a widespread and comprehensive review of the definition of day-to-day activities as interpreted in the guidance notes. Moreover the point is made that the tribunal does not at any time show that it has considered the case of Goodwin v Patent Office, where Morison J, then President of the EAT, set out a number of guidelines which tribunals were advised to consider. In particular what was stressed was that the:
"the focus of attention required by the Act of 1995 is on the things the applicant either cannot do or can only do with difficulty, rather than on the things the person can do" (at page 309).
This decision of the Employment Appeal Tribunal made it clear that the tribunal should adopt an investigative role and inquisitorial element; that the tribunal should bear in mind that with social legislation of this kind a tribunal should adopt at purposive approach. A person with a disability will often, out of a matter of dignity, answer and say that he or she can cope, yet their ability to lead what would generally be construed as a normal life pattern had been severely compromised.
"(i) is the Applicant disabled within the definition contained in the Disability Discrimination Act 1997;
(ii) was the Respondent aware of his disability?
(iii) did the Respondent for a reason which related to the Applicant's disability treat him less favourably than he treated or would treat others to whom the reason does not or would not apply; and
(iv) cannot show that the treatment in question is justified?"
The letter then went on to set out a preliminary hearing and gave certain directions.