The Equality Act states that an employer is not under a duty to make reasonable adjustments if they do not know (or could not reasonably be expected to know) that the worker has a disability. In Toy v Chief Constable of Leicestershire Police, the Employment Appeal Tribunal (EAT) held that an employer cannot be expected to know that a worker has a disability if the worker only has a “strong belief” that he has dyslexia.
Mr Toy, a Turkish citizen, was appointed as a probationary police officer in November 2013, having previously worked as a police community support officer for seven years. After satisfactorily completing his academic module, he started his “on the job” training under the tutelage of a more experienced police officer in early May 2014. This ordinarily lasted for 12 weeks during which he was required to demonstrate 37 different skills set out in the police action checklist (PAC).
The police officer expressed serious concerns about Mr Toy’s performance and he was assigned to another officer. He too had considerable misgivings about his performance. An Inspector decided that Mr Toy was being rushed though the PACs and an enhanced support plan was put in place. He was assigned to another officer who, in a report written in September 2014, expressed the view that PC Toy was a risk to himself and the public and could not be signed off as fit for independent patrol.
As a result, the force initiated the procedure for dispensing with a probationary police officer under regulation 13 of the Police Regulations 2003. At the second stage of that procedure. PC Toy’s representative suggested that he had the potential to be dyslexic although this had never been raised before and no evidence was provided to substantiate the claim.
At the final stage of the procedure, the Chief Constable expressed surprise that the possibility of dyslexia had been raised at such a late stage without any evidence. In any event, he did not think it was relevant to the issue of Mr Toy’s poor performance and decided that he should be dismissed. Mr Toy then lodged claims of direct race and disability discrimination and failure to make reasonable adjustments.
The tribunal dismissed his claims of race and disability discrimination. It also dismissed his claims of discrimination arising from disability and failure to make reasonable adjustments. In relation to these claims the tribunal held that the Chief Constable did not know nor could he reasonably be expected to know that he had dyslexia. Although there might be conditions (such as depression) where an employee does not recognise that they have a disability and others might, this case was not one of them.
The tribunal also held that he was not put at a substantial disadvantage because he had dyslexia or that reasonable adjustments would have prevented such disadvantages. Mr Toy appealed against the findings in relation to his claims of discrimination arising from disability and failure to make reasonable adjustments.
The EAT upheld the decision.
The decision in this case is specific to its facts. However, there are lessons for both employers and workers. Employers should not rely on this decision to support an argument that they do not have knowledge of a worker’s disability. An employer is expected to do all they reasonably can to find out if a worker has a disability and this may include obtaining medical evidence. Workers should also raise the possibility of having an impairment with the employer sooner rather than later if they want the employer to make reasonable adjustments.