Mr R Harrison v The Active Learning Trust Ltd T/a Chantry Academy: 3314304/2023
EMPLOYMENT TRIBUNALS
Case No 3314304/2023
Between
Mr R HarrisonClaimantThe Active Learning Trust Ltd T/a Chantry AcademyRespondent
Before
Employment Judge M WarrenIn person for claimantMr S Gittins (instructed by Counsel) for respondentDate 31 December 2024
REASONS
[1]This is an Open Public Preliminary Hearing listed so that I determine the preliminary issue as to whether or not Mr Harrison met the definition of a disabled person contained in the Equality Act 2010 at the relevant time, which was 1 January 2019 to 7 December 2023.[2]Mr Harrison has been employed by the Respondent as a Duty Manager since 1 January 2019. After Early Conciliation between 4 October and 15 November 2023, he issued these proceedings on 7 December 2023.[3]The case came before Employment Judge Mason for Case Management on 16 July 2024 and at that time this, hearing was listed to determine the issue of disability.[4]Prior to the Preliminary Hearing, at the ET3 check stage, Employment Judge Laidler had made orders calling upon Mr Harrison to provide further information in relation to his claim that he was a disabled person in the form of an Impact Statement supported by Medical evidence. What Mr Harrison has provided on a Word document, are his typed answers to the questions posed in the Order, which is perfectly fine, he has given the information that we need.[5]I should record Mr Harrison not only works as a Duty Manager, he is also a Personal Trainer and an Assessor for Gym Instructor qualifications.
The Law
[6]In terms of the relevant Law, I explained to the parties that in the Hearing Summary that would follow, I would set out a full explanation of the relevant Law relating to the definition of disability. The following is the laymen’s explanation I gave at the time.[7]Section 6 of the Equality Act 2010 says that a person is disabled if they have a physical or mental impairment, (it is the mental impairment that is relevant here) and that impairment has a substantial and long term adverse effect on the ability to carry out normal day today activities.[8]Substantial means more than trivial.[9]Day to day activities is an expression that is to be given an ordinary and natural meaning.[10]What amounts to long term is defined in Paragraph 2 of Schedule 1 to the Equality Act 2010 and amidst that definition, is that it has lasted for at least 12 months.[11]The four key points for deciding whether a person meets the definition of disability is set out in the case of Goodwin , as follows, 11.1. Did the Claimant have a mental and / or physical impairment? 11.2. Did the impairment effect the Claimant’s ability to carry out normal day to day activities? 11.3. Was the adverse condition substantial? and 11.4. Was the adverse condition long term?[12]A more technical explanation of the relevant law is as follows.[13]For the purposes of the Equality Act 2010 (EqA) a person is said, at section 6, to have a disability if they meet the following definition: “A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.[14]The burden of proof lies with the Claimant to prove that he is a disabled person in accordance with that definition.[15]The expression ‘substantial’ is defined at Section 212 as, ‘more than minor or trivial’.[16]Further assistance is provided at Schedule 1, which explains at paragraph 2: “(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.[17]Paragraph 12 of Schedule 1 provides that a Tribunal must take into account such guidance as it thinks is relevant in determining whether a person is disabled. Such guidance which is relevant is that which is produced by the government’s office for disability issues entitled, ‘Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability’. The guidance is not to be taken too literally and used as a check list, (Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19) much of what is there is reflected in the authorities, (or vice versa).[18]As to the meaning of ‘substantial adverse effects’, paragraph B1 assists as follows: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences and ability which may exist amongst people. A substantial effect is one that is more than a minor or trivial effect”.[19]Also relevant in assessing substantial effect is for example the time taken to carry out normal day to day activities and the way such an activity is carried out compared to a none disabled person, (the Guidance B2 and B3).[20]The Guidance at B4 and B5 points out that one should have regard to the cumulative effect of an impairment. There may not be a substantial adverse effect in respect of one particular activity in isolation, but when taken together with the effect on other activities, (which might also not be, “substantial”) they may together amount to an overall substantial adverse effect.[21]As for what amounts to normal day-to-day activities, the guidance explains that these are the sort of things that people do on a regular or daily basis including, for example, things like shopping, reading, writing, holding conversations, using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, taking part in social activities, (paragraph D3). The expression should be given its ordinary and natural meaning, (paragraph D4).[22]As to what amounts to a ‘substantial effect’, the guidance is careful not to give prescriptive examples but sets out in the Appendix a list of examples that might be regarded as a substantial affect on day-to-day activities as compared to what might not be regarded as such. For example, ‘difficulty going out of doors unaccompanied…” or “difficulty waiting or queuing, for example, because of a lack of understanding of the concept…” or “difficulty entering or staying in environments that the person perceives as strange or frightening, because the person has a phobia..” which would be regarded as substantial effects, as compared to, ‘inability to speak in front of an audience simply as a result of nervousness;” or “some shyness and timidity…” which would not be so regarded. Also, “Persistent distractibility or difficulty concentrating” as compared to, “Inability to concentrate on a task requiring application over several hours”.[23]When considering substantial effect, we should focus on what the claimant cannot do, (guidance B9). It would be wrong to weigh what a claimant can do with what a claimant cannot do and decide on balance, thereby, whether he is disabled. However, findings of fact about what the claimant can do may throw light on the question of what he cannot do, especially where there is a factual dispute about the extent of the adverse effect, see Ahmed v Metroline Travel Ltd UKEAT/0400/10.[24]In Goodwin v Patent Office [1999] ICR 302 the EAT identified that there were four questions to ask in determining whether a person was disabled: 24.1. Did the Claimant have a mental and/or physical impairment? 24.2. Did the impairment effect the Claimant’s ability to carry out normal day-to-day activities? 24.3. Was the adverse condition substantial? And 24.4. Was the adverse condition long term?
Findings of Fact
[25]The so called mental impairment relied upon by the Claimant is Dyslexia. It is an unfortunate turn of phrase, because Dyslexia is not really a mental impairment, it is a neurodiverse condition or a learning disability. But the Law requires us to use that expression. Diagnoses[26]Mr Harrison was first diagnosed with this disability during his Year 7 at School in 1998 to 1999. At that time, assistance was put in place for him. He was further diagnosed with Dyslexia when he was at College in 2003 to 2004, again assistance was put in place for him.[27]A third diagnosis of Dyslexia has recently been provided in the expert’s report that is before me today in the hearing bundle. This report is provided by somebody called Elisabeth Suddell and is dated 6 April 2024. Ms Suddell is a qualified Specialist Teacher, holding a current Specific Learning Disability Assessment Practising Certificate. She certifies that her Assessment and Report was written in accordance with the SpLD Assessment Standards Committee current guidelines for diagnostic assessment and report writing and is based upon a personally administered assessment in a face to face setting, with scoring and tests which were assessed by her. It is a 19 page Report. Most usefully, one can go to page 15, (page 427 of the Bundle) where she sets out her summary of her findings under a heading ‘Confirmation of Diagnostic Decision’ and I will quote from there a number of things which she says as follows, “Ryan’s challenges with word de-coding affect his reading accuracy and fluency. He usually reads familiar and common words quite confidently but has more difficulty when vocabulary is complex or unfamiliar. A combination of challenges with reading accuracy and learning memory (also referred to as auditory working memory) reduces Ryan’s capacity to comprehend the things he reads. He reports often needing to re-read for meaning, which is time consuming. Difficulties with spelling, word finding and compositional writing continue to affect Ryan when producing written scripts. He can manage these challenges to some extent through the use of technology and an allowance of additional time, which have become his normal way of working. He has a great work ethic, so applies lots of strategies and additional effort to ensure that the writing he produces reflects his potential as closely as possible, however this can be quite time consuming and requires considerable effort and additional focus. Ryan’s difficulties with literacy acquisition / development have been lifelong… more noticeable impact on him at times when the literacy and language demands have increased, for example, during study and in the workplace when completing literacy based tasks. Ryan’s challenges with learning are further influenced by difficulties with verbal memory, phonological skills and processing speed. The undertaking of learning in literacy based tasks often requires additional time, focus and opportunity for consolidation. Conversely, Ryan has many great skills and abilities that serve him well… His visual logic and visual spatial skills are also a strength… He has an excellent understanding of his strengths and challenges and applies this insight in many aspects of his every day life. Ryan has a good work ethic and has worked hard to develop self-help strategies.”[28]I also make the observation, I will not quote them, that Ms Suddell makes a number of workplace adjustment recommendations in her Report at page 17 thereof. Claimant’s Evidence[29]Now I turn to the evidence which I heard today from Mr Harrison as set out in his “Impact Statement” at page 37 of the Bundle. Before I recite from that, I record that he told me in evidence that in answering some of these questions he used templates, (as he often does) that he has found on the internet and either filled in blanks or made changes so that what is written applies to his personal circumstances. He also confirmed his wife had helped him by sense checking and reading through what he had written.[30]In this document, his “Impact Statement”, Mr Harrison tells me a number of things about the way he says his Dyslexia affects his day to day activities, his day to day life: 30.1. He tells me that it takes him much more time to absorb information compared to somebody without his condition. 30.2. He has to repeat processes many times. 30.3. He speaks of developing and using many methods to complete his understanding and memory, including traction and distraction, conscious and unconscious, flipping learning, audio books, podcasts and YouTube. 30.4. He says he uses reading software on a laptop. 30.5. He refers to great support from his wife. 30.6. He says he has to immerse himself in everything that he wants to do or learn to allow his brain to practice, review and repeat. 30.7. He refers to difficulties on social occasions or events, in particular with food menus, how he often mis-reads them and receives something different from what he thought he had ordered. 30.8. His strategies at restuarants include copying the people that he is with, or asking them what they are having. 30.9. He says he does not use social media or play online games. 30.10. He says his Dyslexia prevents him from communicating effectively and that he often either misunderstands or does not get things quite right. 30.11. He says he does not use text communications. He does not use group messaging or emails. 30.12. He says that he has a tendency to try and avoid roles that involve reading and writing. 30.13. He wrote, “Dyslexia affects me every day as everything as we live in a world of reading and writing. We live in a buying online system, mobile tablets, computers and laptops all based on reading and writing with pages of pages of terms and conditions, work has process, policies and systems which has pages of reading and writing. When booking holidays online or purchasing I consciously don’t understand and get orders wrong and documenting names and details. I have problems with purchasing insurance and will call up instead.” 30.14. He speaks of having to use materials in multiple mediums by multiple methods, sitting down with his wife and going through things, going through software and so on, trying to print out rather than using things that are on screen, taking notes and re-reading things multiple times, adapting what he is looking at into his own language, highlighting key words. 30.15. He says he spends a lot of time in mornings and evenings practising or preparing for events, tasks and workloads, searching for information in podcasts or YouTube. 30.16. He wrote about being mis-sold life insurance, booking incorrect dates for hotels and misunderstanding terms and conditions. 30.17. He was not able to learn to drive when he was younger, only learning to drive more recently at the age of 32, struggling with processing multiple commands and in the end resorting to using an automatic car and using audio speak for the practical parts of the Driving Test. He writes of planning routes before he travels, using Google Streetview to visualise the process and doing that time and time again before he sets out. He says he recently missed a speed awareness course because of his difficulties. 30.18. He wrote, “My Dyslexia affect memory, organisation, concentration, multi-tasking and communications. This especially with responsibility of running a household, family and work.” Respondent’s Response[31]The Respondent seeks to challenge the cogency and the credibility of Mr Harrison’s evidence and what he has written in that document. They draw my attention in particular, to entries on his LinkedIn site which they say are inconsistent with some of the passages that I have just read out and summarised. There are two points I will make about that. 31.1. Firstly, when one is writing on LinkedIn one is advertising oneself and one is hardly going to put entries on LinkedIn that indicate all the difficulties that one faces in life because of some health challenges. 31.2. Secondly, I accept Mr Harrison’s explanation about his entries on LinkedIn; how he has built a network of friends and colleagues and how he uses this team of people to help him provide the services that he is advertising on LinkedIn. For example, there is a reference to social media, but he does not do the social medial himself, somebody else does it for him. The references to training that he advertises, he does not do the training himself, somebody else does it for him.[32]What I would also say, as is obvious, Mr Harrison’s evidence is corroborated by an expert’s report.[33]I therefore accept Mr Harrison’s evidence.
Conclusions
[34]I find that Mr Harrison has a mental impairment, forgive the unfortunate terminology, of Dyslexia that affects his day to day activities, writing and reading, participation in social activities, in conversations, in social media, in driving, in navigating and in processing oral instructions.[35]That affect as described is more than trivial. It is substantial. The effect is long term, it is lifelong. He has had it since childhood.[36]I find that Mr Harrison met the definition of a disabled person in accordance with the Equality Act 2010 at the material time.