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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

  1. Introduction
  2. Disability
  3. Discrimination
  4. Employment
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Employment: in the job

As well as recruitment and promotion, the Equality Act will extend, for example, to making reasonable adjustments in the job, training, absence procedures, transfer or dismissal.

Introduction

Disability discrimination protection applies in the job as well as on recruitment or promotion. This will include protection against harassment, and against less favourable treatment, eg not being sent for training or to a conference for a reason related to the disability.

Probably the most important right for disabled people is to reasonable adjustments. There are some examples on this page. Often adjustments will be simple, and may cost little or nothing at all.

If a person goes off ill (eg with a stroke, or voice disorder) and there is a 'disability', then absence procedures (including action for excessive absence) should comply with the Equality Act. Where a person is unable to do all or part of their job, the duty to make reasonable adjustments can include (if it is reasonable) adjusting the job or moving the person to another job.

Any dismissal for a disability-related reason will also need to comply with the Equality Act (as well as with other laws such as unfair dismissal). There will often be a question of whether reasonable adjustments were made to enable the employee to do the job, and whether the dismissal meets the 'objective justification' test.

Some examples

This section includes some examples of what can be helpful and what may be unlawful. What is legally required under the Equality Act 2010, by way of reasonable adjustments or otherwise, will depend on the particular circumstances. Also the Equality Act usually only applies if the impairment is a 'disability' as defined.

Disability awareness

Example: training
Staff in a sizeable company are given disability awareness training, which includes the range of communication disabilities.

Example: colleague with aphasia
With the collaboration of a staff member who has aphasia, her colleagues are made aware of what she finds helpful when communicating.

Some disabled people may choose to be pro-active in informing colleagues, though this does not mean the employer can put the onus on the disabled person:

Case study: material sent round by employee
A woman who stammers, and who was very 'upfront' about it, sent round powerpoint slides to team members about stammering and about her as individual. This was in turn sent to the IT and media team with whom she needed to work. This was seen as a positive move as it opened up the avenue for people to have a conversation about stammering.

Giving instructions

Example: SLI
An employee has specific language impairment (SLI) and finds it more difficult to understand things communicated to him. (The employee has normal intelligence, and is as able as anyone else to do the job when it is understood.) A supervisor giving him instructions makes sure the employee understands what he is being required to do. The supervisor might demonstrate the task and give the employee a chance to try it out to make sure he has it right.

Meetings and presentations

Case study: greater use of writing
For meetings, an employee with a speech impairment prepared written notes on his items, which were emailed to attendees prior to the date. Once, for example, he produced a 'discussion paper' on a topic, with background information and specific decisions to be made. This enabled a large amount of information to be made available in writing, including specific questions to address, which he might otherwise have found very difficult to deliver orally. He could answer any questions orally at the meeting.

Case: fitness to practice of a barrister
The Bar Standards Board Review Panel decided in this case that a barrister with aphasia was fit to practise. It pointed out that judges should make reasonable adjustments in court (though for judges this may be under duties outside of the Equality Act).
In the matter of Horan, Bar Standards Board Review Panel, 2010.

Link: Meeting and presentations, in context of stammering (link to stammeringlaw.org.uk).

Staff courses

Case: adjustments to a training course:
In a case on stammering, part of a staff training course involved participants reading out notes about themselves and taking part in a role play. The employee did not wish to read out his own notes, and they were read out by his line supervisor who was a facilitator. Also he was allowed not to take part in the role play. However, part of the employee's complaint to the Employment Tribunal was that he was required to give comments on issues arising from the role play. The Tribunal held that in the circumstances it had not been unlawful to require him to do this.
Alderson v Walkers Snack Foods Ltd (link to stammeringlaw.org.uk), Employment Tribunal, December 2001.

Open plan offices

An employee with a communication disability may have particular problems where others can overhear, or where there is greater background noise.

It might be a reasonable adjustment, if the employee wants this, to allow them to be in a more isolated corner of the office, or where possible to let them use a smaller empty office to make phone calls. More ideas: Open plan offices (link to stammeringlaw.org.uk).

Case: partition cutting down noise
A claimant with vocal nodules complained about the taking down of a partition separating her office from the stock control room. She considered that the increased noise levels would have a substantial adverse effect upon her health.
SCA Packaging v Boyle (link to stammeringlaw.org.uk), House of Lords, July 2009. (The House of Lords decision concerned her appeal - which she won - on the issue of having a disability, rather than the reasonable adjustment itself.)

Similarly, it could be a reasonable adjustment to be exempted from a hot-desking arrangement. Someone could be allowed to sit at a preferred seat, if this helps their communication disability. A case on hot-desking is Roberts v North West Ambulance Service, 2012 (link to stammeringlaw.org.uk) - though the disability in that case was not a communication impairment.

Telephone

For some examples of possible adjustments, see above Open plan offices (above) and Re-allocating duties (below).

Example: telephone greetings
A person who stammers is allowed to alter the standard greeting when they answer the phone, to something they find easier to say.

External link in context of stammering Examples of reasonable adjustments: telephone (link to stammeringlaw.org.uk).

Re-allocating duties

Duties might be reallocated among staff where it is reasonable do to so.

Example: adjusting telephone duties
A woman who stammers found particular problems with telephone calls. She asked that others in the office answer incoming calls. Only callers wanting to speak to her would be put through to her.

A case about a lecturer who lost his voice considered more major changes, particularly since a restructuring was happening anyway (see also below Transfer to a new job):

Case: lecturer lost job in restructuring
A lecturer worked mostly in a quiet classroom setting, but about two hours a week was in a noisy machine shop where he had to shout. He developed problems with his voice, diagnosed as functional dysphonia. After an absence from work, he taught small groups and mature students, but was then put back on a full timetable. His voice broke down and he went on sick leave. He never returned to work. In a restructuring where new job roles were created, the claimant lost his job.

The employer accepted that his functional dysphonia was a 'disability'. The Employment Tribunal held there was a breach of the duty to make reasonable adjustments. Its decision was upheld on appeal. Possible adjustments (subject to reasonableness) would include giving him other duties he could perform, including student contact and individual tuition; providing amplification to reduce the effect of the disability on his ability to lecture; in the restructuring, where there had been a 'blank sheet of paper' as regards job specification, devising a job which would take account of the effects of his disability (but harness the benefits of his long career and successful record); redeployment and re-training.
Southampton City College v Randall (link to bailii.org), [2005] Employment Appeal Tribunal.

Note: these steps could be required if reasonable. However, contrary to the decision in this case, it has since been decided that there is no breach of the reasonable adjustment duty simply because the employer failed to consider or investigate reasonable adjustments. On the other hand, failure to do so obviously puts the employer at much greater risk of breaching the duty.

In a similar case, a teacher with vocal nodules received compensation after not being allowed to take less vocally demanding classes:

Case: teacher awarded compensation
A teacher had developed vocal nodules, which led to hoarseness and a sore throat. She said the nodules were caused by constantly raising her voice and repeating herself over the din from a nearby children's play area. She argued her employers did not do enough to help her - that she was asked to teach more students, and was not allowed to stop teaching beginners' classes which were more vocally demanding. She was awarded compensation in an out-of-court settlement (so there was no tribunal decision).
Teacher awarded £150,000 for losing her voice talking loudly in class (link to thisislondon.co.uk), November 2010. Most of that sum was a personal injury claim rather than disability discrimination.

Case: dismissal after developing voice disorder
The claimant was dismissed after developing bowing of the vocal cords and tracheitis. She succeeded in a claim for disability discrimination and unfair dismissal.
Mid Staffordshire General Hospitals NHS Trust v Cambridge (link to bailii.org), March 2003, Employment Appeal Tribunal. As regards disability discrimination (including reasonable adjustments), the law applied now would be different in various ways. However, a similar claim might well succeed under the Equality Act 2010, eg for 'discrimination arising from disability'.

Time off, and return to work

An employee may need time off work following a stroke for example. For an ongoing communication impairment, some time off may be required for eg. speech and language therapy.

It will often be a reasonable adjustment to allow the employee time off related to a disability. Also, any action taken against an employee for disability-related absence - such as dismissal, or using the absence as part of redundancy criteria - is likely to be subject to the objective justification test.

Because disability-related absence is subject to the Equality Act, it is good practice for an employer to record it separately from any absences which are not related to disability.

On a return to work following an extended absence, it may well be reasonable for an employer to allow a phased return. As well as considering any reasonable adjustments in the performance of the job, Re-allocating duties (above) or Transfer to another job (below) may be reasonable adjustments.

There is much more on absence and return to work in the context of a stroke in the Aphasia/stroke links (below).

Transfer to another job

From statutory Code of Practice
An employer should consider whether a suitable alternative post is available for a worker who becomes disabled (or whose disability worsens), where no reasonable adjustment would enable the worker to continue doing the current job. Such a post might also involve retraining or other reasonable adjustments such as equipment for the new post or transfer to a position on a higher grade.
Paragraph 6.33, Employment Code of Practice

The House of Lords confirmed in Archibald v Fife Council (link to stammeringlaw.org.uk) that transfer to another job may be required as a reasonable adjustment. The House of Lords said that the obligation on the employer could include (if reasonable) waiving a requirement for competitive interviews where the employer normally required these, such as where the transfer would be to a higher grade job. Also a transfer could be upwards, as well as sideways or downwards.

Disciplinary and grievance procedures

Appropriate adjustments should be made to ensure an employee with a communication disability can have their say and understand the proceedings.

There is often a legal right in any event to be accompanied by a fellow worker, trade union official, or workplace trade union representative: see direct.gov.uk: Handling disciplinary actions and direct.gov.uk: Raising a grievance at work. In some more limited circumstances, a worker has a legal right to be represented by a lawyer.

Those are rights independent of the Equality Act. However, the Equality Act (for example, the reasonable adjustment duty) can require employers to make adjustments above and beyond such rights. So a person with a communication disability might, for example, might be allowed to bring a friend or family member into an internal hearing where normally only a fellow staff member or trade union representative would be allowed.

From statutory Code of Practice
A worker with a learning disability is allowed to take a friend (who does not work with her) to act as an advocate at a meeting with her employer about a grievance. The employer also ensures that the meeting is conducted in a way that does not disadvantage or patronise the disabled worker.
Paragraph 6.33, Employment Code of Practice

Assistive technology

The reasonable adjustment duty can include providing auxiliary aids and services. This might include for example, an altered auditory feedback device for someone who stammers: Electronic fluency devices (link to stammering.org).

An Access to Work grant may be available for technology (direct.gov.uk: Access to Work) and the availability of any grant is relevant in deciding what it is reasonable for the employer to have to do.

According to para 6.33 of the Employment Code of Practice, the reasonable adjustment duty does not include providing equipment - such as a wheelchair - which the person needs for personal purposes in any event. However, the boundaries of this are unclear.

Some links on adjustments once employed

Aphasia/stroke

Stammering

Voice disorders