Adverse Effects

Paterson v Commissioner of Police of the Metropolis (2007, IRLR 763)

The 1995 Disability Discrimination Act (DDA) says that a person has a disability if their physical or mental impairment “has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

In Paterson v Commissioner of Police of the Metropolis (2007, IRLR 763), the Employment Appeal Tribunal (EAT) said that once a tribunal has established that someone is suffering from a substantial disadvantage, it follows that it must have a substantial adverse effect on their normal day-to-day activities.

Basic facts

A police officer since 1983, Mr Paterson reached the rank of Chief Inspector in 1999. He then became a Senior Investigating Officer for internal professional standards which required him to deal with a lot of complex paperwork. In 2001 he was commended for his ability to write “good and clear reports”.

In 2004 he discovered he was dyslexic, and alleged, as a consequence, that he was disabled. He claimed he had been discriminated against for a reason relating to his disability and that his employers had failed to make reasonable adjustments when deciding whether he might be promoted to Superintendent.

Tribunal decision

The tribunal had the benefit of two experts’ reports which said that, on certain tests, Mr Paterson had performed poorly. The first report placed him in the category of mild dyslexia (and said he should be given 25 per cent more time for completion of promotion assessments for the senior position of Superintendent); the second identified his dyslexia as more severe.

Noting that it was required to concentrate on what he could not do (rather than what he could do), the tribunal accepted that Mr Paterson was at a disadvantage in the high pressure situation of taking an exam compared to his non-dyslexic colleagues. However, it decided that taking exams in a high pressure situation was “by no means [a] normal day-to-day situation”.

In any event, it said this disadvantage was “well capable of being compensated for within the respondent's own procedures and proper good industrial practice”. In comparison with the population as a whole, therefore, it concluded that his dyslexia only had a “minor or trivial impact” on his day-to-day activities.

Mr Paterson appealed.

EAT decision

The EAT disagreed with the tribunal, however, saying that undergoing assessments or examinations was a normal day-to-day activity, as were reading and comprehension. This was made clear in the 2006 decision of the European Court of Justice in Chacόn Navas v Eurest Colectividades which said that impairments that hinder someone’s participation in professional life fall within the definition of day-to-day activities.

In any event, the task for the tribunal was not to compare Mr Paterson’s performance with the population at large, but with how he would do it if he did not have the impairment. In order to be substantial the effect must fall outside the normal range of effects that one might expect from a cross-section of the population.

The court gave the example of someone who has all the skills to be a highly successful accountant, but who lacks manual dexterity. “This may require that he or she should be given longer to do the relevant examinations. It would surely be no answer and would be wholly inconsistent with the purposes of the legislation, simply to say that that individual was not disadvantaged when compared with the population at large and therefore no obligation to make the adjustment arose.”

It concluded that once the tribunal had accepted that Mr Paterson was disadvantaged “to the extent of requiring 25% extra time to do the assessment … then it inevitably followed that there was a substantial adverse effect on normal day-to-day activities”.