Disability discrimination, failure to redeploy

DDA: dyslexia/chronic fatigue syndrome/failure to re-deploy. Case Ref: 9.3/ Oct 05

Summary of case

A PCS member was employed in a Civil Service Department as an Administrative Officer. He was diagnosed with chronic fatigue syndrome (CFS/ME). He was also dyslexic.

He raised concerns on several occasions about working in a "high pressure" environment. This had caused him to take more time off work. He asked to be transferred to a less stressful post. Despite these requests the employer failed to offer a suitable alternative post. 

The member raised a grievance and the employer finally started to make some attempts to help find him another job by providing assistance with drafting of his CV etc. 

One of his line managers expressed concerns to the member about the effect that his attempts to find alternative work was having on his health. The member consulted with his GP. He also wrote to his local MP who raised the matter with the Department's Permanent Secretary. 

Shortly afterwards, the line manager and the member had a meeting. The member was told he was unfit for work and instructed him to remain at home on sick leave. 

The member was upset about this. He admitted shouting and swearing at the managers, and as a result was dismissed. He appealed to the CSAB. He also lodged an ET application on the grounds of unfair dismissal and disability discrimination.

Advice requested

Thompsons were requested to provide advice on the member's prospects for winning his case at an ET.

Key advice provided by Thompsons

In a lengthy response, the solicitor provided advice on several different aspects of the case. Three points from the advice letter are particularly worth noting: 

Firstly, with regard to whether or not CFS/ME is considered a disability as defined by the DDA, the solicitor advised: 

"(the member) has a physical impairment; CFS/ME. One of the associated symptoms of this condition is depression and mood disorders. It may therefore be argued that the condition is both a mental and a physical impairment.

"To establish a mental impairment it is necessary to show that the impairment is a well recognised mental illness such as properly diagnosed depression and mood disorders. (He) is very clear that he is not mentally ill but accepts he has depression and other stress related symptoms because of the CFS/ME and the pressure he has been put under by the treatment at work.

"The fact that, in order to fit CFS/ME into the DDA definition, it may be necessary to categorise it as a physical and mental impairment is not to say that (he) is mentally ill but to recognise the connection between CFS/ME and the depression/mood disorders. 

"(The member's) pattern of absence due to fatigue and illnesses related to the weakened immune system suggests that it does have a substantial adverse effect on his day to day activities. 

"The doctor's view in March 2004 was that (the member's) condition did not amount to a disability under the DDA. He did not challenge the diagnosis but appears to be saying that the reasons for the absences were not connected with the CFS but to (his) disaffection with the job and/or that the CFS did not have any significant effects in (his) case.

"Given his hostility to the diagnosis it should be fairly easy to show that he had not investigated sufficiently to form any such conclusion. However it may have been reasonable for the DTI to rely on that advice because (the member) was refusing to allow a further examination by the same company. (The member) had, in his view, good reason for this but it still means that the DTI had no other medical evidence other than a very short note (page 188) confirming CFS is a "well recognised medical illness" and asking for co-operation in making the working environment less stressful. 

"(the member's) description of his symptoms including pain, fatigue, poor concentration and memory loss. He will be able to expand on the effects of these symptoms on his ability to carry out day to day activities such as shopping, watching a serial on TV and maintaining ordinary activities such as cleaning the house, going out with friends and family and so on. It is likely that a Tribunal, on this evidence, will accept that (his) condition substantially adversely affects his day to day activities. 

"Evidence about the effect on work activities is only relevant to the extent that it might corroborate or contradict his ability to carry out day to day activities but this may be important." 

Secondly, the solicitor also provided some comments on whether or not dyslexia is considered as a disability within the meaning of the DDA. On this point the solicitor said: 

"(The member) has a mental impairment that is not a mental illness, dyslexia, that affects his written work and his reading. I do not know the extent of the effect of the impairment on (the member).

"The Guidance relating to the Definition of Disability regards inability to write a cheque without assistance or considerable difficulty in following a short sequence such as a recipe as a substantial adverse effect. These are just illustrations and should not be regarded as the minimum standard.

"The Guidance says that minor problems with writing or spelling would not be reasonable to regard as having a substantial adverse effect. The specialist (the member) saw on 19/4/04 who recommended various adjustments may have done a report detailing the effects of the impairment. Occasionally misspelling a word is unlikely to be enough to establish disability." 

Finally, the solicitor provided some useful guidance on how Ets may view the failure to redeploy. On this point the solicitor said: 

"The failure to redeploy is a failure to make a reasonable adjustment. The Department will argue that it was not a reasonable adjustment they failed to make because: 

a. they were taking steps but hadn't managed to find anything suitable yet 

b. the steps they were taking were hampered by the level of absence OR 

c. it was reasonable for them not to redeploy without interview because at that stage the medical evidence they had was that (the member) was not covered by the DDA. 

"The chronology shows that the line manager started to take steps to enable (the member) to move out of the department at least by June 2004.

"Specifically he decided not to institute the normal attendance/inefficiency procedures for the level of absence in order to improve (the member's) chances. By September more help had been arranged. The letter from another manager (Mr Y) on 13/7/04 saying that the Department does not consider a move out of the Department is necessary is bizarre given that it was clear by that stage that he could only stay in the Department if his attendance improved and that the adjustments that had been made by then (see email of 15/6/04) had not improved his attendance.

"Either the section could cope with someone with CFS who required sporadic and sometimes prolonged absences including time out each day, or they couldn't. Reading all the documents together I think it is clear that the section were saying that they could not cope with that level of attendance or breaks and that they needed someone with a more reliable and certain attendance to manage the pressured work of managing the diary. Mr Y was simply wrong but this is probably because he had not really addressed his mind to the issue of the CFS disability and its effects. 

"A Tribunal will give the employer time to see whether the adjustments work. By the time it was clear that the adjustments were not working and attendance had not improved greater steps were taken. Unfortunately this was not until September. 

"You have given me 9 jobs that became available between July and September that (the member) says were suitable for him. The key issue will be whether, for each vacancy, redeploying to that position would have been a reasonable adjustment.

"The Tribunal will consider whether (he) could have done those jobs, the extent to which redeployment would have improved his attendance/reduced the effects of the CFS on his attendance, and whether it was reasonable for the DTI to fail to consider a move given that at that stage they had an opinion from their medical adviser that (his) condition did not amount to a disability.

"The DTI may argue that the jobs were not suitable because of the level of pressure and stress in the position, the importance of having a person in those positions who could work long hours if necessary, work without breaks and to tight deadlines. The letter at page 188 says that (he) should avoid stress even if that means him performing at a lower level. It may be important to know whether (he) was receiving any treatment for his condition and what the prognosis was for the future. Alternative work will only be a reasonable adjustment if his attendance and ability to work a full day improved."

Legal Department Comment

Hopefully the above extracts will provide some useful guidance for representatives dealing with cases involving members who suffer specifically from dyslexia and/or CSV/ME. Key issues in respect of failure to redeploy appear to be that: 

Tribunals will give the employer time to see whether adjustments work. For each potential vacancy, the key issue will be whether or not redeployment to the relevant position would have been a reasonable adjustment.

Linked to all of this is consideration to whether or not the member was capable of doing the work of the relevant post, the extent to which redeployment would have had a positive effect on attendance and whether or not it is reasonable for the employer to fail to consider a move in the light of a medical advisor's view that the member did not have a condition which amounted to a disability. 

Updated 28 Jan 2017

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