In a recent case Habib v Whelan Sports Ltd t/a Fitness First the Employment Appeal Tribunal held that an Employment Tribunal was wrong not to have regard to the Equal Treatment Bench Book when hearing a case for a claimant with dyslexia.
The Equal Treatment Bench Book
The Equal Treatment Bench Book is guidance which is available to judges in cases where reasonable adjustments to the legal process might be required to assist a claimant who has a disability.
Is dyslexia a disability?
Dyslexia has been held to be a disability under the disability provisions of the Equality Act 2010. It may not amount to a disability in every case and whether it does will depend on the circumstances of the case but provided it has a substantial adverse impact on everyday activities it can be a disability.
What happened in this case?
In Habib v Whelan Sports the claimant experienced some difficulties when giving evidence which arose from her dyslexia. At times she was unable to follow the proceedings and understand particular words which was consistent with her dyslexia. Her problems with the process were more acute when she was being cross-examined. This is hardly surprising given how stressful being cross-examined can be. The Employment Tribunal concluded erroneously that there was an element of performance and exaggeration in Ms Habib’s evidence. Her claims failed.
The appeal
Ms Habib appealed arguing that she had not been provided with a fair hearing because the tribunal failed to refer to or have regard to the relevant provisions of the Equal Treatment Bench Book which provides guidance to judges about vulnerable witnesses and the possible difficulties a claimant with dyslexia might face. In this example, inconsistent behaviour was wrongly interpreted as untruthfulness and failure to grasp the questions appeared equally evasive. This was an injustice to the claimant and denied her a fair hearing.
The appeal was upheld. The tribunal appeared to rely on the issues connected to her dyslexia to doubt her evidence. This rendered the hearing unfair. The claims have been remitted to a new tribunal to hear the evidence again.
If I need to go to law what should I do to avoid this happening to me?
If you have dyslexia or another disability which might impact your ability to participate in a legal process it is important that you flag this so that accommodations can be made. Otherwise you will be at a disadvantage and that could defeat the purpose of allowing you to have a fair hearing. If you are going to rely on a disability to get adjustments you should aim to provide the Employment Tribunal with solid evidence from your GP or other specialist. Going into a legal forum with no evidence will only cause further issues.
This blog was written by Karen Jackson, MD of didlaw and a leading expert in disability discrimination in the workplace.
