‘Only dyslexics need apply’ – unlawful discrimination?
A new marketing firm, the Garage, has caused controversy by publishing a job advert requesting applications from dyslexics only. The ad features Steve Jobs and states: “We are looking for talented thinkers who think differently to join us. We require people with a unique mind, so only dyslexics (like Steve) should apply.” This raises questions over the extent to which dyslexia amounts to a disability, whether the advert potentially amounts to unlawful discrimination, and the steps employers can take to encourage applicants from a particular group.
Dyslexia as a disability
Dyslexia is common learning difficulty which causes problems with reading, writing and spelling. For example, a person with dyslexia may confuse the order of letters in words or read and write slowly. According to the NHS , however, people with dyslexia are often creative thinkers and good at problem solving.
The owner of the Garage, Chris Arnold, has fiercely defended the advert, stating that the best innovative thinkers are usually dyslexics. He has also been quoted as saying that dyslexia is not a disability – although employment tribunals have adopted a very different view on this question.
Depending on the severity of the dyslexia, it clearly could fulfil the legal definition of a disability under the Equality Act 2010. The test is whether the individual has “a physical or mental impairment which has a substantial and long-term adverse effect on [his/her] ability to carry out normal day-to-day activities”. So the key issue is whether the dyslexia is serious enough to have a substantial effect on normal activities.
This is illustrated by a recent case in which a Starbucks employee successfully claimed disability discrimination claim against her employer. Meseret Kumulchew mistakenly entered wrong information when entering the temperature of fridges and water in a daily roster. Starbucks accused her of falsifying documents and reduced her supervisor duties as a result. The Employment Tribunal found that Ms Kumulchew’s dyslexia amounted to a disability for which Starbucks had failed to make reasonable adjustments and the company had also discriminated against her because of the effects of her disability.
The British Dyslexia Association estimates that one in ten people has dyslexia to some degree, although many have not been formally diagnosed. The Starbucks case provides a reminder that dyslexia is a condition employers need to be aware of and treat seriously. In particular, employers should consider their duty to make reasonable adjustments for employees (or job applicants), such as providing a recording device or giving support with proof reading. As with all disabilities, it is important to discuss the specific adjustments with the employee to discover their particular needs, rather than making assumptions.
Is the advert discriminatory?
Going back to the Garage’s advert, the Advertising Standards Authority has commented that it does not appear to contravene its code. There is still, however, the question of whether it is permissible under UK employment law.
Although the advert appears to discriminate against people without dyslexia, this is not necessarily unlawful. Unlike other aspects of equality law, disability discrimination does not apply equally to both disabled and non-disabled people. In general, only someone with a disability can make a claim for direct or indirect discrimination. The law actually allows people with disabilities to be treated more favourably, with the Equality Act specifically stating that it is not discrimination to treat a disabled person more favourably than a non-disabled person.
But the issue becomes more complicated if a challenge is brought by someone with a different type of disability. For example, someone with autism or dyspraxia (a common condition which affects motor coordination) could seek to argue that they are being directly discriminated against by the advert because they have the “wrong” type of disability. This would be a novel argument but, as the individual making the challenge would themselves be disabled, the situation does not appear to fall within the exemption allowing discrimination against non-disabled people.
The Equality Act does include certain exemptions for discrimination. For instance, it allows for positive action to give preference to somebody with a protected characteristic in specified circumstances – but these provisions are quite limited. An employer can treat a person with a protected characteristic more favourably than others in recruitment, if they are “as qualified” as others and the employer reasonably considers that persons with the characteristic are disadvantaged or their participation is disproportionality low. The Garage’s advert seems to go beyond the remit for permissible positive action – there is no indication that the firm had the view that those with dyslexia are disadvantaged in their participation, but rather that they make better creative employees.
The manner in which the Garage treats any applications in practice would be crucial in the event that a legal challenge was made. For example, how would it deal with an autistic applicant? Would it really turn down someone who could demonstrate the required “creativity”, simply because they were not dyslexic?
Ultimately, the advert may primarily have been a clever marketing ploy to get the public talking about a new consultancy – in which case, it has certainly worked!