February 14

The importance of supporting dyslexic employees…..

Starbucks has lost a disability discrimination case after it wrongly accused a dyslexic employee of falsifying documents when she had simply misread numbers she was responsible for recording.

The equality legislation is vague on whether dyslexia constitutes a disability. It defines a disability as “a physical or mental impairment which has a substantial and long-term adverse effect on … normal day-to-day activities”. However, it does go on to suggest that under stressful conditions people with dyslexia can be seen to suffer such an impairment. Thus employers should assume that a dyslexic employee may well be protected as disabled.

All organisations must make reasonable adjustments for those with disabilities, including dyslexia, under the Equality Act 2010 to ensure that a disabled employee is not seriously disadvantaged in performing his or her job. Employers should also have appropriate policies in place and make sure that discrimination is avoided in the recruitment process and the work environment.

The employee in this case had made her employer well aware of her dyslexia but they had failed to make reasonable adjustments for her disability, more particularly her reading difficulties, and had discriminated against her because of the effects of her dyslexia. The tribunal also found that the employee had been victimised by her employer and there appeared to be little or no knowledge or understanding of the equality issues.

This case emphasises how important it is for employers to try and understand the effects that an employee’s disability has on that particular employee and whether the employer can take any reasonable steps to ensure the employee is not disadvantaged in the workplace. This case should also serve as a bit of a ‘wake up’ call for employers as dyslexia affects as many as one in ten people, although many have not been formally diagnosed, and thus appropriate allowances and adjustments must be made if an employer is to avoid falling foul of the equality legislation.

February 14

Are employers able to take a robust approach in cases of work related stress?

Occupational stress in the workplace is on the increase. The latest estimates from the Labour Force Survey show that in 2014/15 stress accounted for 35% of all work-related ill health cases and 43% of all working days lost due to ill health.

It is an issue for employers, not only because of the prolonged absences that can result from stress-related illnesses – 9.9 million working days in 2014/15 – but also because of the potential liability of an employer if workplace stress results in a psychiatric injury and it was foreseeable that an injury might result from pressures at work.

Just how easy is it for an employee to prove that it was reasonable for the employer to have foreseen the psychiatric illness caused by the work place stress and therefore be liable for it? Not very easy according to the recent High Court case of Easton v B&Q plc…..

In B&Q the court was given the task of determining whether the employer had been in breach of its duty of care for one of its employees who was suffering from a work related psychiatric illness. The employee became unwell due to occupational stress and was away from work for five months. He returned on a phased return programme and later relapsed due to depression.

A key point from the outcome of the case centres on the issue of foreseeability. As an employer, if you know or ought reasonably to know that an individual is suffering or at risk of suffering a work related illness, you are obliged to:

* make enquiries;
* take necessary steps to conduct a risk assessment;
* provide support for the individual.

However, as an employer you are entitled to assume that someone can withstand the normal pressures of the job unless they suggest otherwise.

In this case Mr Easton, the employee, did not specifically raise during any meetings or appraisals that he was struggling to cope with the demands of the job. In addition, he had previously had more stressful jobs and coped well. Further, nothing about him gave anyone any clue he might succumb to psychiatric illness and he didn’t complain as he wanted to impress senior management.

An employer can only be liable for an illness caused by work if it was reasonably foreseeable. In this case because it was not brought to the attention of B&Q they were not deemed to be liable. However, caution should be taken by employers with this judgement – it doesn’t always have to be brought to the employer’s attention – it is extremely important to note that there is often a fine line between genuinely not knowing that something is likely to happen and turning a blind eye to clear signals that it might.

Factors for employers to consider when there are concerns over an employee who may be suffering from work related stress are:

* Have there been any complaints by the employee in question, or others?
* Is there a known history of stress related illness in the role? Or employee?
* Are you meeting regularly with employees and documenting appraisals and meetings?
* Is there support in place for early intervention for someone who is suffering from stress related illness?
* Is there an established process and policy in place for an employee to raise concerns?
* Are your managers trained to notice the signs of stress?
* Do you have a counselling service you refer employees to if required?

Employers have a clear duty of care for the mental health and well-being of their employees and must therefore act where concerns are highlighted. However, and as importantly, employees must also be responsible for looking after their own mental health and must seek advice and support when needed in the workplace.

This case highlights the importance of making employees aware of the channels through which they can raise concerns and the need to flag up those concerns clearly and repeatedly to ensure their employer is fully aware of the situation. It does also make clear that employers are not expected to be telepathic and serves as a useful reminder that the threshold for foreseeability of psychiatric injury and breach of duty is high.

Many employees will experience periods of being over worked and stressed at work – very few go on to suffer psychiatric illness as a result. An employer’s obligation to act arises when the indications are plain enough for any reasonable employer to realise he should do something about it.