Discrimination Diaries – Part 2

Jan 15, 2019

Our discrimination expert, Senior Solicitor Katie Harris, answers your questions on difficult discrimination issues in employment.  This month, a dyslexic employee seeks help with concerns raised about his performance.

Names and circumstances have been changed to protect the identities of those involved.

Question
I currently work for Inteli-Solutions, a large IT software company. I work in their marketing department as an administrator, but I’m hoping to progress to a marketing assistant.  I joined Inteli-Solutions following university as a graduate trainee, and I’ve been in my current role for 6 months.  I really enjoy this area and feel like I’m very good at it.  I achieved a first class honours degree in marketing from a well-known university.

Last week I was called into a meeting with my manager without any warning.  She told me that the Company has serious concerns about my performance.  The concerns are that I have been late to work on more than one occasion, and there have been lots of errors in my writing.  One of these errors resulted in a large number of marketing communications being sent to the wrong recipients.  This was a complete shock, as no one has mentioned any concerns before this, and I thought everything had been going well.

My manager has told me that I have one month to improve, and if I don’t I’ll be sacked. I’m really worried as I have dyslexia, so I tend to make more mistakes in written work than normal. I think I’m going to lose my job. Please help!

Answer
There are a number of things to consider here. 

Normally, in order to terminate employment fairly, an employer must have a fair reason, and follow a fair process.  However, you have under two years’ service, and so do not have the right to bring a claim for unfair dismissal. This means that, technically, Inteli-Solutions could terminate your employment straight away for performance reasons without having to give you an opportunity to improve.  In these circumstances, you would be entitled to receive your contractual notice and a payment in lieu of any outstanding annual leave.  However, there are two things (set out below) which potentially change this situation.

Common law apprenticeship
Firstly, you mention that you were recruited as a graduate trainee.  It is possible, depending on the circumstances including the nature of your role and the terms of your contract, that your employment status may be that of a ‘common law apprentice’.  If so, then you will have enhanced protection against dismissal (even if you have under two years’ service) and will be entitled to enhanced damages if you are found to have been dismissed unfairly.  Generally speaking, common law apprentices can only be terminated in very limited circumstances. Poor performance would not be enough to justify dismissal.

Disability discrimination
Secondly, you mention that you are dyslexic.  This condition is potentially a disability under the Equality Act 2010 (‘the Act’).  A disability is a condition that has a substantial adverse effect on your ability to carry out normal day to day activities, and that effect has lasted, or is expected to last, at least 12 months. 

Dyslexia is likely to be a disability as it is a life-long condition that can effect someone in a number of different ways, but generally effects a person’s ability to communicate, follow directions, read or write.  If these effects are more than minor or trivial, then you are likely to be considered disabled, and protected by the Act.

The Act protects disabled people in a number of different ways.  Of relevance in your case is that it is unlawful to treat someone unfavourably for a reason arising out of their disability, and there is an obligation on employers to make adjustments to your place of work or to processes and practices to help alleviate disadvantages caused by your dyslexia.  In your case, if the performance issues relate to your dyslexia, then Inteli-Solutions will have to make sure that any action they take against you is justified, they have explored ways in which they can support you, and implemented any appropriate adjustments.

Do Inteli-Solutions have knowledge of your disability?
Inteli-Solutions will only have these obligations if they are aware, or should reasonably have been aware, that you are disabled.  Have you told anyone at work you have dyslexia?  If not, then I would recommend you tell your manager as soon as possible, so that they can consider whether adjustments can be made to your role.  In order to do this Inteli-Solutions should consider seeking medical advice on how dyslexia affects you, such as referring you to occupational health for an assessment. 

The reasons must relate to the effects of your condition
If you inform Inteli-Solutions that you have dyslexia, and they dismiss you for poor performance without having made adjustments to your role, then you potentially have a claim for discrimination arising out of your disability, and/or a failure to make reasonable adjustments.  However, you will only be able to do this if your dyslexia caused your performance issues.  This may be easier to show if the performance issues related to reading, writing and following directions.  You are clearly a very capable person, as you have achieved a first class honours degree.  It may be that you are just not getting the right support. However, I note that you have also been late to work on a number of occasions.  Is this caused or related to your dyslexia?  If not, Intelli-Solutions could potentially dismiss you fairly for this reason, as it is unrelated to your disability.

Can terminating your employment ever be justified?
Inteli-Solutions could potentially defend a claim on the basis that any adjustments were unreasonable (they were either disproportionate or unlikely to help), and/or that they were trying to achieve a legitimate aim and the action they took was both appropriate and necessary.  For example, Inteli-Solutions have a legitimate requirement to ensure that marketing materials are sent to the right individuals.  If, despite making adjustments, providing support to you, and giving you an opportunity to improve, it was still likely you would make serious errors, then Inteli-Solutions could potentially justify dismissing you on this basis.  However, in order to do this, they would have to demonstrate that they had taken all reasonable steps to avoid dismissing you, including considering re-deploying you to another part of the business if there was a suitable vacancy.

I would suggest you inform your manager as soon as possible about your dyslexia and how it affects you. If Inteli-Solutions fail to take adequate steps to try and support you, your next step would be to consider raising a formal grievance.  Inteli-Solutions should have a grievance procedure you can follow, which can normally be found in the staff handbook, or obtained from HR.

All discrimination claims are very fact specific and this note is intended as general guidance only. If you have any discrimination issues, we would recommend seeking legal advice. Our employment team would be pleased to assist with this, and can be contacted at employment@herrington-carmichael.com or 0118 977 4045.

This is written as a guide, it is not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.