Case No 1400009/2022Venue SOUTHAMPTONHearing 14 February 2023
Between
Mr A D C WebberClaimantEssex Cares LtdRespondent
Before
Employment Judge GrayMr Wheaton (instructed by Counsel) for claimantMr Wright (instructed by Counsel) for respondentDate 14 February 2023
JUDGMENT
[1]The judgment of the tribunal is that the Claimant is a disabled person within the meaning of the Equality Act 2010 at times material to this claim by reason of a mental impairment with the formal diagnosis of mild dyslexia or specific learning difficulty that may be regarded as showing dyspraxic features. JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT SOUTHAMPTON ON 14 February 2023 EMPLOYMENT JUDGE GRAY Representation For the Claimant: Mr Wheaton (Counsel) For the Respondent: Mr Wright (Counsel)[3]The judgment of the tribunal is that the Claimant is a disabled person within the meaning of the Equality Act 2010 at times material to this claim by reason of a mental impairment with the formal diagnosis of mild dyslexia or specific learning difficulty that may be regarded as showing dyspraxic features. JUDGMENT having been delivered orally on the 14 February 2023, and written reasons having been requested by email from the Claimant’s representative dated 23 February 2023, in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This is the judgment following a preliminary hearing to determine whether the Claimant was a disabled person at the material times.[2]The purpose of the hearing was as follows (as listed at the case management preliminary hearing before Employment Judge Dawson on the 13 September 2022):a. to determine whether the Claimant was a disabled person at the material times;b. to consider whether the case is suitable for mediation; andc. to give further directions and list the case for a final hearing. Background to the claim[3]This claim has been the subject of a previous case management preliminary hearing and orders from a hearing on the 13 September 2022.[4]It was confirmed at that case management preliminary hearing that the Complaint’s complaints were for breach of contract (notice pay) and disability discrimination, covering direct, discrimination arising from, indirect, for a failure by the Respondent to make reasonable adjustments, harassment, and victimisation.[5]The issues relevant to the claim were agreed at the previous hearing.[6]This preliminary hearing was listed to take place in person and determine whether the Claimant was a disabled person at times material to the claim. The Claimant describes his impairments as dyslexia, dyspraxia, and anxiety.[7]For this hearing I was provided with a hard copy bundle and a PDF version consisting of 189 pages and index pages which included a copy of the Claimant’s impact statement (at pages 58 to 60).[8]I was also provided with:a. A further copy of a Job description (which appears to be the same as that already in the bundle); andb. Written submissions from Claimant’s Counsel.[9]In respect of the dates for the complaints of disability discrimination, time was taken to consider the issues and the times material in this claim. From that process it was identified that the material times in respect of the dyslexia and dyspraxia asserted impairments are November 2020 to October 2021. For the anxiety asserted part of the impairment it was late September 2021 to October 2021.[10]This hearing benefited from both sides being represented by professional Counsel and they were agreed that the disability question was best considered by hearing their submissions and taking the Claimant’s impact statement as uncontested.[11]What each side wanted me to read in advance of their submissions was agreed. These were the references in the Claimant’s Counsel’s note (albeit the page references are the pages in the referred to document rather than the page in the bundle). Also, Respondent’s Counsel directed me to read, pages 63, 98 and 99, 116 and 117, the Fairweather report (pages 119 to 143), but in particular the executive summary (page 122 to 124) and the conclusions and recommendations (pages 134 to 138). Finally, pages 144 to 146.[12]I found the following relevant facts in relation to the preliminary issue proven on the balance of probabilities after considering the whole of the evidence, as presented to me on these issues, and after listening to the factual and legal submissions made by and on behalf of the parties on these issues.
The Facts
[13]The Claimant was employed from 17 January 2020 to 26 October 2021.[14]The Claimant contends that he is disabled person by reason of mental impairment, describing his conditions as dyslexia, dyspraxia, and anxiety.[15]The Claimant says in his disability impact statement that he believes he is disabled because (as at paragraph 2 of his statement) … “I live with the following impairments - dyslexia, dyspraxia and anxiety. I have had these impairments all my life and expect to have them for the rest of my life but the dyslexia and dyspraxia were first professionally identified when I was[17]A report was prepared to assist me going into higher education which stated that I had weaknesses in language and visual processing and some awkwardness to motor development. It was also noted that in general my working speeds were low. People with dyspraxia commonly suffer from anxiety.”. 16. The Claimant explains (in paragraph 4) that … “Since May 2019, I have had assistance from Workability, a scheme which offers support to people with learning disabilities to get into work. I have a Workability adviser and I have found this support very helpful.”. 17. The Claimant describes how he … “can’t drive because my hand‐eye coordination is so bad it was suggested (by 2 driving instructors) that I was dangerous so I stopped having lessons” (paragraph 5).[18]Also, he says that spatial awareness is very poor, so that … “I bump into things such as doors and in corridors. I am careful not to bump into people. I am careful to maintain my personal space and I find that I am able to avoid this. (paragraph 6)”.[19]Then at paragraph 7 … “I cannot follow maps or directions and travelling on public transport such as trains makes me very nervous based on past stressful experiences of getting stuck as certain trains didn't run when they were meant to and I couldn't work out how to get there. I have a very poor sense of direction and on one occasion I became so stressed trying to find a particular coffee shop in Worthing that I called my Workability Adviser, and she had to talk to me step by step until I got there.”. The Claimant then details the work arounds he uses (as set out in paragraph 8).[20]At paragraph 10 … “My dyspraxia makes me clumsy and to avoid being clumsy I am slow and precise in my movements. I am very careful and take my time. If I chop a carrot, I chop very slowly and carefully.”.[21]He also refers to a difficulty in balancing priorities and memory (paragraphs 14 and 15).[22]This evidence is not contested. It is understandable as it is consistent with the formal assessments of the Claimant, such as that detailed in the Brook report and the Assessment of study needs (as referred in Claimant’s Counsel’s written submissions).[23]Of note (at page 64) is the background information in the Brook report (dated 23 March 2006) … “Alexander has shown difficulties with jigsaw puzzles, Lego, throwing and catching, running, climbing stairs, dressing, cycle riding, and colouring and drawing. He has tended to be clumsy. Alexander has shown further difficulties in his levels of activity, sleeping, eating, temper, long silences, concentration, discipline, and toilet training. He is prone to anxiety.”.[24]Also of note is paragraph 6.1 of the Fairweather report, which was the joint report produced to assist the determination of the disability question, at pages 127 and 128 of the hearing bundle, it is also consistent saying: “6.1. Mr Webber reported experiencing the following day to day and employment difficulties:• Time management• Organisation and planning• Listening and concentrating for long periods of time• Taking longer to process written text and writing with speed• Writing large volumes of text• Reading text and needing to re-read text to take in the information• Memory - Mr Webber explained that he has always had difficulties with his short-term memory, such as with remembering dates and verbal instructions. He informed that he does not currently have any strategies in place to support his memory.• Untidy handwriting Motor Co-ordination - Mr Webber never passed her [sic] car driving test despite having numerous lessons. He reported that as a child he did have no motor co-ordination difficulties whilst completing everyday activities or playing football.• Gross Motor Co-ordination - Mr Webber never passed his car driving test despite undertaking lessons. 6.1.1. Mr Webber reported no difficulties with other activities such as independent living or playing sport.”[25]The checklists as at pages 151 to 153 of the hearing bundle, notes difficulty writing, bumping into objects and not driving.[26]What does appear to be in dispute factually between the parties is what formal diagnosis applies to these impacts on the Claimant’s day to day activities.[27]With reference to page 63 of the hearing bundle, the Brook report (dated 23 March 2006) says the Claimant … “…. suffers a mild dyslexia or specific learning difficulty that may be regarded as showing dyspraxic features. This links to weaknesses in language and visual processing, and some awkwardness to motor development. Alexander's general speeds in working are slow.”. Also, …. “…. Alexander seems likely to be eligible for a Disabled Students’ Allowance from his local education authority on moving into higher education.”.[28]With reference to page 80 of the hearing bundle, the Oxford Assistive Resources Centre – Assessment of Study needs of a disabled student (assessment date 18 September 2007), about disability it states … “Alex is dyslexic and dyspraxia. Oxford ARC has a copy of an educational psychologist’s assessment written after Alex was interviewed on 15th March 2006.”.[29]The GP records refer to Dyslexia and Dyspraxia, and stress related problems (page 98). And a diagnosis of work-related stress as of 13 September 2021 (page 99).[30]It is not in dispute that around the 20 September 2021 (page 96) the Claimant is having suicidal thoughts.[31]In the joint expert’s report, it is confirmed that the Claimant has a specific learning difficulty of dyslexia (paragraph 3.1.2 on page 123), but notes (at paragraph 3.1.3) that … “Given that Mr Webber showed a significant difference at the 0.05 level between his verbal comprehension ability with his perceptual reasoning, I checked for dyspraxia using the Adult Development Coordination Checklist (ADC). This indicated that it is unlikely that he experiences symptoms on day to day basis which conclude that he has Dyspraxia.”.[32]This is a conclusion that it is unlikely he experiences such symptoms on a day to day basis which concludes he has dyspraxia, however, the symptoms of not driving and spatial awareness are not in dispute.[33]Mr Wheaton on behalf of the Claimant in his review of the joint expert’s report highlights inconsistencies in the scoring relied upon, for example it says the Claimant never had difficulty with team games, but it notes next to that he was not good at it. Unfortunately, the expert has not gone on to say why. It notes he gave up learning to drive, but that it is marked as N/A about parking a car so that this doesn’t appear to have counted as a disadvantage in the totals (page 152).[34]I would also note paragraph 3.1.5 (page 123), which says … “It is unlikely that given Mr Webber’s difficulties with dyslexia, that his day to day activities are adversely and substantially impacted. Whilst in section 10, I have outlined the job related activities that are likely to have affected whilst in his role as a Call Centre Agent. This would need to be confirmed by a workplace needs assessment.”. Section 10 details a number of difficulties (see paragraph 10.1.14 (page 136)) including … “Memory - Mr Webber explained that he has always had difficulties with his short-term memory, such as with remembering dates, verbal instructions, appointments and people’s names. He informed that he does not currently have any strategies in place to support his memory”.[35]It then goes on to say the likely difficulties he would have in relation to his role as a Call Centre operator (paragraph 10.1.20 (page 137)).[36]Working is a day to day activity.[37]It is clear that all the evidence presented supports the diagnosis the Claimant was given in 2006 of mild dyslexia or specific learning difficulty that may be regarded as showing dyspraxic features. There is no separate diagnosis of anxiety, but the Claimant’s evidence indicates it as being part of his mental impairment, so a symptom or consequence connected to the formal diagnosis.
The Law
[38]As set out in section 6 and schedule 1 of the Equality Act 2010 a person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months or is likely to last the rest of the life of the person.[39]I was referred to Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522 by Claimant’s Counsel to assert that even if the Claimant had mild dyslexia that does not mean it does not have a substantial negative impact on his daily activities.[40]I would also note that it is permissible for a Tribunal to consider, first, whether the claimant’s ability to carry out normal day-to-day activities is adversely affected and to consider the question of impairment in the light of those findings – see J v DLA Piper UK LLP [2010] IRLR 936.[41]In Goodwin v The Patent Office [1999] IRLR 4, the EAT held that the statutory definition of disability is concerned with a person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. The focus of the test is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do.[42]When considering whether the impact is more than minor or trivial, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired”. – Paterson, paragraph 27.[43]In Paterson, the EAT considered that, in some cases, coping strategies will prevent the impairment having adverse effects, but only where they can be relied upon in all the circumstances – (per Elias P at 28).[44]In All Answers Limited v W [2021] IRLR 612, the Court of Appeal said that, whether the effect of an impairment is likely to last at least 12 months is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did or did not have last for 12 months.[45]From these submissions and the relevant law, the following key points are noted:[46]The burden of proving disability lies squarely on the Claimant.[47]From the definition from the Equality Act 2010, as referred to above, four essential questions need to be answered:(1) does a person have a physical or mental impairment?(2) does that have an adverse effect on their ability to carry out normal day to day activities?(3) is that effect substantial?(4) is that effect long-term? These questions may overlap to a certain degree; however, a tribunal considering the issue of disability should ensure that each step is considered separately and sequentially: Goodwin.[48]An impairment will only amount to a disability if it has a substantial adverse effect on the individual’s ability to carry out day-to-day activities which are normal. Whether an effect is substantial requires a consideration whether it is more than minor or trivial: section 212 Equality Act 2010.[49]Paragraph. 2(1), Schedule. 1, Equality Act 2010 states that an impairment will have a long-term effect only if:(1) it has lasted at least 12 months;(2) the period for which it lasts is likely to be 12 months; or(3) it is likely to last for the rest of the life of the person affected.[50]If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out day-to-day activities, it is to be treated as having that effect if it is likely to recur (paragraph 2(2), Schedule.1, Equality Act 2010).[51]In respect of the meaning of the word ‘likely’ as used in the above context, this means whether something “could well do” or “could well happen”.[52]Also, considering the Guidance on the definition of disability (2011) about recurring or fluctuating effects which states that the effects are to be treated as long term if they are likely to recur beyond 12 months after the first occurrence (see paragraph C6). The Decision[53]Does the asserted mental impairment of dyslexia, dyspraxia and anxiety amount to a disability within the meaning of the Equality Act 2010?[54]With regard to the particular facts of this case I am mindful that the time at which to assess the disability (i.e., whether there is an impairment which has a substantial adverse effect on normal day-to-day activities) is the date of the alleged discriminatory acts. This is also the material time when determining whether the impairment has a long-term effect.[55]Considering the statutory provisions and the four questions as set out in Goodwin;(1) does a person have a physical or mental impairment?(2) does that have an adverse effect on their ability to carry out normal day to day activities?(3) is that effect substantial?(4) is that effect long-term?, I find as follows:[56]I accept that the Claimant suffers with a mental impairment which he describes as dyslexia, dyspraxia and anxiety and which had a diagnosis in 2006 as mild dyslexia or specific learning difficulty that may be regarded as showing dyspraxic features.[57]Then to consider how impaired the Claimant was in his normal day to day activities (was it substantial – that is more than minor or trivial) and if so, when did that impairment substantially adversely affect him?[58]I find that the Claimant is substantially adversely affected by his asserted mental impairment accepting the uncontested evidence of the Claimant about these matters.[59]Finding that a Claimant is substantially adversely affected by his impairment is not itself enough, that effect needs to be long term. That is, it needs to have lasted at least 12 months; or the period for which it lasts is likely to be 12 months; or it is likely to last for the rest of the life of the person affected. The Claimant says it is life long and it has certainly been diagnosed since 2006. There is nothing presented evidentially to suggest it was not impacting on his day to day actives substantially at times material to this claim.[60]For those reasons my finding is that the Claimant has satisfied the definition of having a disability within the meaning of the Equality Act 2010 at the material times to this claim, by reason of a mental impairment with the formal diagnosis of mild dyslexia or specific learning difficulty that may be regarded as showing dyspraxic features.