Being managed out (Dyslexia)

[Sin30]

Evening All

I'm posting on behalf of a work-mate, he has dyslexia, which I just found out this morning when he asked if I would go into a meeting with him. I asked what the meeting was about and he said it was a Disciplinary. He had nothing prepared, didn't know what to expect at the meeting, anticipate and Q+A's etc. I suggested he ask for a postponement which is now arranged for later this week. That will give me a chance to go over everything with him and help prepare his "defence"/written submission for the hearing. He isn't in a union.

He has only 5 months service so still within the probation period and he's afraid he's headed for the door but I think there is a possible discrimination element (DDA), so your opinions would be appreciated.

Firstly I shoud stress he has no issues with his actual job tasks (technician) works well in the team and has had no complaints of any nature (conduct/capability) up until the current situation which is this;

Over the course of a few weeks in November, he had to attend a few induction meetings for new starts. These aren't specific to his tasks or department, they are to give an outline of other depts within the company. They mainly involve powerpoint presentations given by the speaker. His dyslexia makes it difficult for him to follow, there's mental strain and loss of concentration and tiredness. He was also on meds for an unrelated condition at the time and a known side effect was fatigue. During one of these presentations (away from his work area) he dozed off while seated as he was mentally and physically drained at the time. He acknowledges this happened. Unfortunately it was the MD who was giving the presentation. The incident has been blown out of proportion.

The invite to disciplinary from his own manager details the above as misconduct. As well as this, it states there were 2 further occassions it is alleged he dozed off, again at powerpoint presentaions (away from his work area and unrelated to his tasks/dept). He denies these 2, 1 time he was just looking down, the other he has momentarily closed his eyes (bright room) but was not dozing. No statements of these 2 alledged incidents have been given to him. If the company intends to also persue these, surely he should have been given statements to consider his response?

His manager was involved in the investigation meeting and also chairing the hearing later this week. It is a large firm and dept with many other managers who could step in, there is also an in-house HR team. Did I mention his manager is a serial bully (I speak from personal experience). Also at lunch time today, the manager reprimanded my friend for leaving his work area "without permission" - never a requirement for him (or anyone else for that matter) before today. He felt humiliated. He feels he is now being harassed by the bully manager who wants him gone but is temporarily stuck with him while HR suss out any possible DDA link. He has been to see Occ Health. As well as dyslexia (confirmed) he has been tested in the past for ADD(without hyperactivity) and also sleep disorder - unconfirmed but not ruled out.

So, any thoughts on the matter would be appreciated :)

Does he have medical evidence to show that the dozing off is related to his medication? I'd have thought that this would be a mitigating factor, if he can prove it. However, I think it will only be covered by the DDA if it is related to a long term condition, which I'm not clear about.

Sorry, meant to ask - what did occ health say?

Did he inform them of his dyslexia prior to the incident or request reasonable adjustments because of it? Was his employer aware he was taking medication that causes drowsiness at the time of the alleged incident? Was it over the counter/prescribed?

What is the time line of alleged events? Ie the incident with the md - was that before or after the other alleged incident/s? Did anyone speak to him about his behaviour prior to disciplinary action? When did he notify his employer of his medical condition and how does that relate to the alleged incident/s (ie before/after?).

The investigating manager can also be the hearing manager if there was minimal investigation although good practice guidelines from ACAS suggest it should be an independent manager. If you want to request this it should be done sooner rather than later. I will post the link to the ACAS guide separately as I'm on phone.

The DDA has been superceded by The Equality Act 2010. If he is to try to argue disability discrimination you need to use the correct terminology to be taken seriously. It is also worth noting that an employer has no obligation to make reasonable adjustments if they are not aware of a disability.

If they just wanted him out they are going to an awful lot of trouble when they could just dismiss him with notice at any time until he has one year's service.

Sorry the DDA has been mostly superceded. I can't link to DirectGov on my phone but if you search for "DirectGov equality act and disability discrimination" you'll get a really useful section you should read.

If the manager is victimising him then a grievance should be raised and someone else should be found to do the disciplinary hearing. However, that may not happen but it would, IMO, be foolish for an employer to put themself at risk of a discrimination case by failing to do everything by the book.

ACAS link www.acas.org.uk/index.aspx?articleid=1774

Btw, his disability may be a mitigating factor but you cannot have colleagues dropping off in meetings so he may have to hold his hands up to it. But that depends on the answers to my previous questions.

Thanks for the replies, folks

I don't have full info yet, tomorrow lunch time will get further details,

Timeline: Stared woth in August. The induction meeting with MD was 14 Nov, the investigation was 1st Dec and his dyslexia was metioned then so an appointment was set with OH on 14 Dec. The report states fatigue/ sleep deprivation (he typically gets only 4 - 6 hrs sleep) less at the time of the incident, and exacerbated by the prescribed meds (for fat absorption/weight loss) as likely cause for loss of concentration and dozing off. There is no mention whatsoever of the other 2 alleged incidents (think they were added on to try to bolster the case. The invite to disciplinary was dated 12 January.

No issues with anything else on the job, surely it would by a very minor reasonable adjustment to let him stand at the back of a room (nstead of sitting) with PowerPoint presentations (which are few and far between now inductions are over) or even just ask one of his workmates to explain afterwards what was shown on screen.

Battery on my laptop is about to give out but I'll check in again tomorrow

THANKS again #nite# :)

Hmm. Based on the information you've given (and this may be wrong depending on what you come back with tomorrow) he didn't declare his disability or ask for a reasonable adjustment prior to the incident. That weakens his position. If he didn't ask for a reasonable adjustment in the first place the employer can't be expected to offer one until they have been made aware of the need for one.

However, going to disciplinary over dropping off in a training meeting even with the md present seems a bit ott. It may be they want him out and his admission of a disability means they're going for belt and braces approach of disciplinary to protect against a tribunal claim for unfair dismissal related to disability discrimination.

The other incidents which he denies - i would suggest he clearly denies them and expressly asks why they were not ever mentioned before.

So the thing he is being disciplined for is unrelated to his disability?

It may seem ott to discipline for sleeping in presentations but with less than a year service they can dismiss him for that without any process at all if they choose.

Any disability discrimination element becomes relevant if he has reason to believe they would not dismiss him for this if he didn't have a disability.

Does he believe that? Or is the sleeping thing related to his dyslexia and I've misunderstood?

Flowery you've managed to sum up in one line the bit I just don't get. Why investigate and discipline in the first place when they could have just dismissed? It seems such an effort to go to when they don't have to. It will be interesting to see the full timeline of events. Maybe that will make things clearer.

I read it that the dyslexia is being suggested as a mitigating factor because the way the presentations are delivered with lots of words on a screen is difficult to follow because of the dyslexia and that coupled with meds that make him drowsy caused the sleeping. However, that does sound a bit tenuous.

Op, at any time in the investigation did he apologize and say he'd never do it again? Or suggest an adjustment for them to consider? Or did he just give dyslexia as an excuse? How he responded and behaved will be important factors because they are independent of his dyslexia but indicative of his conduct.

Because they are being cautious. One of three scenarios is happening here I think.

Either

A) the issues being disciplined for are related to the disability in which case he should not be being disciplined/dismissed at all.

B) they would prefer to get rid of him because of his disability and are using an issue for which they would not ordinarily dismiss someone with short service as an excuse to do so.

Or

C) dismissing for this in the early stages of employment would be perfectly consistent with usual practice there and they are confident that the disability is unrelated so no special treatment need apply.

if it's (B) or (C) it looks like they have taken advice from HR/externally and been told that because there is a disability involved, even though it's unrelated, they should be more cautious and reasonable than they would otherwise be, use a disciplinary process and give the employee an opportunity to defend himself/put forward mitigating circumstances; an opportunity which another employee would not ordinarily have.

Obviously if it's (A) or (B) that is discriminatory. If it's (C) then it's not.

So to claim discrimination, assuming the issue concerned is not related to the disability, the employee needs to have some reason to believe he would not have been dismissed (assuming that's what happens) had he not had the disability.

If it's (C) although I can see why they are having a process, the problem is having one is giving the impression they need to have one, and is giving the opportunity to focus on whether the process being followed is full and fair. When in fact, if it's nothing to do with the disability, the process should be compared to no process at all.

Exactly. It's the liklihood of sceanario C and the knots this employer might have tied themselves in that has peaked my interest. Especially the process vs no process and the possibility of disciplinary action because of the disability. The bit that is niggling is that from the OP's posts it looks like the employer only found out about the dyslexia at the investigation into the incident. Not that it's clear whether it was a formal investigation or just an office chat - either would make a difference.

I'm going to sit on my hands until the op comes back with more information. I am so nosey intrigued to know what did happen.

Oh yes you're right, disability discovered at investigation.

Maybe instigated disciplinary process rather than straight dismissal in case reason for sleeping was disability-related then.

The fact they only found out about the disability at investigation does imply it's not scenario (A) or (B) anyway.

We'll see!

It's great to see the thought processes going on here, perpsective from all possible scenarios!

Katie: Op, at any time in the investigation did he apologize and say he'd never do it again? Or suggest an adjustment for them to consider? Or did he just give dyslexia as an excuse? How he responded and behaved will be important factors because they are independent of his dyslexia but indicative of his conduct.
Answer: my colleague was extremely embarassed about what had happened, at the time and afterwards and this was acknowleged at the opening of the brief investigation meeting. He was asked why he dozed off and was very open, he said he had a hard time trying to process the visual info on the screen as he has dyslexia, it was frustrating and he lost concentration. (So basically, what amounts to the mental strain with the general fatigue he was feeling at the time was the likely cause).

Just to clarify, it is not him but me who is interested in possibly persuing his impairment as mitigation.

He thinks it's a "done deal" that his probabtion will be terminated because the manager doesn't like him. He was about to go into the disciplinary meeting unprepared and unaccompanied until in passing, he asked me just for moral support. I would prefer to at least try to help him save his job though. He gave me the outline of the situation as well as the paperwork and it was when I read it, it looked to me as though it could be DDA related. I didn't say so because I didn't want to give him false hope, just told him there was an angle I would be looking in to.

Flowery: yes they have taken external advice from their employment lawyers and are being particularly cautious at the moment (I think they are still reeling from another discrimination complaint which was recently settled pre-2 week Tribunal Hearing). Perhaps unrelated but the manager who dislikes my work mate and would like him out is also the same manager who was the subject of that tribunal complaint (under the sda)

When we're the other 2 incidents alleged to have happened? Was he spoken to about them, and was it before or after this incident?

Were not we're. Ipad

Hi Beryl

The other 2 were supposedly August and November, so one was 3 months before the actual incident. The other one a few days after the incident (a pre-emptive poke from a team member just assuming he was gonna doze because he had done it already at the MD talk a few days before)

He was not spoken to following these 2 alledged incidents, the only time he was spoken to was following the one he openly acknowledged and admitted to.