Sunday, 19 July 2009

A Modern Dilemma

Purely ... ahem ... hypothetical, you understand but ...

Just say, for example, that you are an employer in the transport industry. And let's presume, just for discussion, that one of your regional managers has recently taken on a driver who has been doing an acceptable job for the past month.

The employee has all the relevant documents, of which you have, of course, taken copies, but on closer inspection you notice that their name is spelled very slightly differently on their driving licence as opposed to their passport.

You call the employee and ask them which is the correct spelling but they stammer that they don't know.

That's when you realise that they can't read. At all. Not even their own name.

In this entirely fictional, and in no way real (at all, honest) situation, personally I would be wondering how they passed the DVLA theory test in the first place if the paper would obviously appear to them about as understandable as a random sprinkling of iron filings on a white background.

On further investigation, you find out that, despite the inherent need for a driver to understand road signs etc, one doesn't actually have to be able to read the English language to pass the test.

We are committed to equal opportunities for all. We provide a number of facilities for candidates with special needs.

Theory test
Please let us know about the following.

If you are dyslexic or have reading difficulties and need:
an audio version of the test in English; or
extra time to take the multiple-choice part of the test.

If you do not read or understand English and need:
an audio version of the test in one of 20 languages, or you want to take your test in your first language;

This would assuage your concern that someone else had taken the test in place of your employee, although you would be curious as to how they passed the vision part of their practical exam, not understanding the alphabet and all that.

Perhaps you would now be reassured that your responsibility as an employer has been satisfied by your making sure their documents were in order. However, you might still be mildly worried as to the potential consequences to you, personally, should your driver cause a fatal accident which could be attributed to their lack of understanding of a written road sign.

Since you know, and your employee knows that you know, that they are illiterate, how would this affect you should you be pursued for a lack of care under the Corporate Manslaughter and Corporate Homicide Act 2007?

The Act introduces a new offence for prosecuting companies and other organisations for gross failures in the management of health and safety with fatal consequences.

Can you just shift the blame onto the DVLA for passing the driver fit to get behind the wheel? Are you, as an employer, required to provide training (reading lessons) under health and safety law? Or would you just think, "sod this for a game of marbles, I can't take the risk", and let them go?

It may be the safest option. But what if your driver takes umbrage, considers that their possession of a driving licence is enough, and sues for unfair dismissal.

The Disability Discrimination Act (DDA) prohibits discrimination against disabled people in employment.

Employers must not discriminate against a disabled person in
the recruitment and retention of employees,
promotion and transfers,
training and development,
the dismissal process

Severe dyslexia is covered under the law.

Dyslexia does not always affect a person's ability to carry out normal day to day activities.

Considering that, at an employment tribunal, the onus is on the employer to prove their innocence, a claim of discrimination on the grounds of severe dyslexia would likely be accepted by the tribunal service and result in your having to defend yourself with all the entailing cost and disruption to your business.

Pick the bones out of that, then

Well, it could happen. Who'd be an employer in our health and safety, diversity, and equality centric world, eh?


ranger1640 said...

How did the employee fill in the job application for the relevant job?

If it was my employee and they were good at the job and reliable. I would ensure they undertake classes in reading and writing. Thus keeping a valued member of staff and fulfilling the responsibility under the duty of care.

And start with road sings and information relevant to the routes this driver will cover.

Dick Puddlecote said...

Ranger: Interesting observations, thanks. :-)

The job application would have been filled in by someone else (in this purely hypothetical, and in no way real at all, case). As it is a low-paid, part-time job, it wouldn't be a long form.

After just a month, how does one justify the outlay of reading/writing classes for such an employee? There isn't yet evidence that the employee is 'valued' (merely adequate) and let's presume that, in the current market conditions, there are copious amounts of other drivers which could be employed instead.

Also, if someone can't even spell their own name, I'd have thought that making a leap to reading road signs first would be difficult. Which would mean that, to be absolutely safe, the employer would not be able to use them as a driver while they are being instructed how to read.

marksany said...

A balance of obligations: employee's empoyment rights vs customers' health and safety. I would do a risk assessment, fully documented. If you are concerned he his a risk then terminate emploment. It's harsh, but which court would you rather be in: an employment tribunal or a crown court? Next time, improve your recruitment process to avoid hiring illiterate drivers. If you do lose at an unfair dismissal case, chalk it up as a lesson learned.

Dick Puddlecote said...

Good points, Marksany, but how sad is it that one has to factor into an application form the fact that someone with a valid driving licence should not necessarily be assumed to be literate?

By the way, it's not real (at all). It's the potential experience of 'a friend of a friend', you understand.

Pavlov's Cat said...

My brother was accepted for an electrical engineer apprenticeship, 10 or so years ago, one of the other lads from his college was also accepted, but this was withdrawn by the company when it was discovered he was colour-blind.( The ability to differentiate different coloured wires being a bit important in electrics I understand)
He took the company to an employment tribunal , which threw it out.

One wonders if it would be the same today.

Anonymous said...

Dick, I don't know the score if the employee can't read but if they are dyslexic there are certain responsibilities on the employer to make "reasonable adjustments" as Dyslexia is considered to be a disability under the Disability Discrimination Act 2004. In practice, this is easier to understand if you use a more "extreme" disability, say, being in a wheelchair. If your employee can't get into your office building because you don't have a ramp or a lift, then they are within their rights to get you to provide one (or to get you to put them in a ground floor office) so they can do their job. Those are considered to be "reasonable adjustments". However, someone in a wheelchair can't turn up for a job as a hod carrier, for example, and then bemoan the fact that you won't employ them. Similarly, if this driver was dyslexic then the employer has a certain responsibility to make "reasonable adjustments" - maybe providing written delivery instructions in large print (or if it's really bad, on tape). Not a real big deal if they are otherwise good at their job i.e. driving. Another thing to bear in mind is that the Disability Discrimination Act can be overruled when it comes to Health & Safety. For example if a dyslexic wants to train to be a nurse the hospital has to do their best to let them do their job - they give them medical dictionaries, coloured glasses, write notes in certain colours etc (they are sometimes colour blind, too, so medical notes in red and green is a no-no) etc. But at the end of the day, if it's so bad that they can't read the drug labels and people are put at risk then it's tough titty. They can't do the job so they don't get employed and the employer can't be held responsible. Same with the driver. If he drives to Bristol instead of Brighton because the instructions were written in tiny print, when you sack him he could have cause for legal action under the Act. But if he's a danger behind the wheel because of it, then you'd be within your rights to sack him.

I know when it comes to Dyslexia it's easy to go, "Oh, another Righteous excuse for stupidity" (and it often is when it's the parents claiming their kid is dyslexic). But it's a very real condition and can be pretty much accepted when diagnosed after a battery of tests from a Clinical Psychologist - over 20 tests make up a true dyslexia diagnosis). And actually, the Disability Discrimination Acts is one of those rare things - an Act that is actually "fair enough". If you're an accountant and you can't get into the building because there's no ramp is it fair that you should just fuck off and sit on the dole? Then again, unlike most Righteous laws it has a bit of common sense to it, too. You can't get deaf people suing telesales companies for not putting them on phones etc.

In the case of this hypothetical driver, if it's the case that he can't read because he never learned, then I don't know what happens. Presumably if the job doesn't have much reading in it and they have passed their relevant driving exams then it's not your problem.

Anonymous said...

One other thing - the Disability Act is that other rare Act from the Righteous in that it puts responsibility on the disabled person, in that they have a duty to disclose their condition. If he's dyslexic and he didn't tell you at interview then you are judged not to have been able to make the adjustments they need so you can sack them if it interferes with their job. After all, you can't make adjustments if you never knew about it, so the onus is, quite rightly, on them.

Anonymous said...

@ Pavlov's Cat.

Even with the Disability Discrimination Act I imagine your brother's mate would be in the same position today. They'd try and make "reasonable adjustments" but if there's no way around not being able to tell the different colours apart then that's that.

It MAY be that the College would provide equipment that had the cables labelled with words "RED", "GREEN" etc so he could do the course if it was just something he wanted to do OUT OF INTEREST. But if he wanted to do the full vocational course there'd be no way around the fact that such labelling doesn't exist in the real world so he'd never pass the practical element. Besides, they'd also do their best to discourage him from doing the course in the first place as he would be unemployable and wouldn't pass the practical element. So even now, the end result is the same.

I work with dyslexic University students, and in most cases you can work around their condition. But when it comes to nurses etc.... nope. I've seen some nurses who have got straight "A"s in their academic part of the course, but on placement in hospital they just can't do the job - reading medical notes, drug labels etc. They try their best to help them with little hand held scanners that read stuff out to them and coloured sheets etc, but at the end of the day if they can't do the job they can't do the job and they fail and need to find another vocation.

banned said...

Thank you Anonymous 19 July 2009 22:40
You answered my proposed question about where the line is drawn between the Disability Acess rights of a Quadriplegic job applicant and his total innabilty to drive a truck.

Much of Disabilty Access law is very good but it often has unintended consequences.
A nearby small town converted its' old Victorian Schoolhouse into a Youth Centre at vast cost. All was well until someone noticed that it did not meet those( then incoming ) laws because it is built on a hillside and parts of it were not reachable by wheelchair.
Rather than stump up a bit more cash or get held personally liable the Council shut it down, turned it into flats and siphoned the cash into general funds.

Result ? No youth club, kids roaming the streets again. How did the disabled benefit from that ? They used to have access to most of the building ( and all of it with a bit of help ) but now there is just no building.

Anonymous said...

Me again.

Yes, the Disability Act is generally a good thing. But as with everything it has to be implemented and as with all laws, statutes, regulations etc it is often implemented by the Righteous, as such it is used without an inch of common sense.

Look at the Smoking Ban. It goes WAY too far as it is. But only the Righteous would then turn up at failing pubs and conclude that an umbrella is still "a bit too enclosed" and then measure the distances between umbrella and wall etc.

Or look at a law that isn't a half-bakes, half-assed mess - something like the law on assault. Most people would agree you have the right to live your life without being bashed over the head with an iron bar. But only the Righteous can take such a law and use it against people who are woken at 3am in their own homes by a burglar and then strive to defend themselves and their homes.

While 99% of New Labour laws should go straight in the bin, with the Righteous in control even good laws (like the law on assault or the Disability Discrimination Act) will be interpreted in a moronic, bureaucratic way. THEY are the ones who need to be weeded out and sacked.

Anonymous said...

Me again (again!).

Another example of Righteous dimness and inability to think for themselves. When the Act came in in 2004 I visited my local library - a large City branch. There was the lift with its Braille buttons and talking voice. There were the signs, in large print and with Braille. But what had the dumb-ass Righteous done? In their usual way, rather than thinking of the spirit of the law they just unthinkingly took the legislation and applied it to the letter. So the main signs of the Library did indeed have Braille on them for blind people.... but they had been placed where the old signs had been placed i.e some 20 feet above the ground. So the visually impaired could get to the library..... but then be completely lost without assistance - as they were before the library was closed for a week and several thousand was spent on the renovations.

On a side point I've just finished Carswell and Hannan's "The Plan." A great book. The one thing that worries me about it is the contention that more power should be given to Local Councils. Having dealt with local Councils for many years the lack of intelligence and Kafka-esque bureaucracy is astonishing - as is the deep permeation of PC thinking. I dread to think what would happen if these idiots have more power.

After all, the National Governmnet may have introduced the Smoking Ban, but it is Local Councils who have banned smoking in parks, playgrounds etc. And what happens? A few angry letters in the "Shittington Gazette" but their Nazism carries on regardless and without retribution. At least with power being at a national level the scrutiny is also at a national level. The mainstream press, TV and every blogger in the land is aware of whatever latest insanity they have planned for us and it is often shelved as a result of the backlash. Power at a local level? Then every park in the land would be "man-free" (as all men are potential paedos), all areas would be booze free (as they almost are now) and smoking would be banned everywhere except your home, regardless of what the national law actually says.

As I say, a damn good book, but I'd rather power was given directly to me than devolved to the dipshits in my Local Council.

patently said...

Dick Pudlecote has thought up an entirely fictional dilemma[...]

There is a message here for all putative employers: Don't.

Dick Puddlecote said...

Great comments, Anon. Very enlightening, thank you.

At least that puts to bed the chance of a false claim of discrimination due to dyslexia (20 tests and the requirement to warn in advance).

A libertarian view would be, I presume, that the chance of a fatal accident in such circs is so very minimal that no action is required, but in this litigious age, and with such punishing powers available to the state, I suspect many employers would just say it's not worth even the tiniest of risk.

Joe Public said...

1. There are differences between dyslexia & illiteracy.

2. The comments from Pavlovs Cat regarding a colour-blind prospective electrician are not a true comparison. The only identifier of a wire in a multi-core cable is its sheath colour.

Motoring signs are identified by shape and/or unique position [Traffic lights are always red / amber / green top to bottom specifically to aid colour-blind drivers.]

3. Pity we can't ban drivers for being incompetent.

Anonymous said...

I'm not up to date with employment law (left HR many moons ago) but certainly some years ago rights of employees didn't kick in until after a time period (which I think was dependent on whether or not the employee was full or part time). An employer would usually use this statutory time period to determine the probationary period of the employee and it would be written into the contract of employment. The employer could then sack the employee within that time period without going through the procedures demanded by unfair/wrongful or constructive dismissal law.

Even if employees were covered by legislation with immediate effect, tribunals would not consider it unreasonable to sack an employee who failed to disclose information crucial to the job and it could be argued that literacy in drivers is crucial (eg what if he had to read health & safety info?) - unless of course tribunals have taken leave of their senses which in today's UK, is entirely possible...


Dick Puddlecote said...

Jay, you are correct about time periods for employment tribunals, but according to the law (as directed by the EU), a claim due to discrimination, of any kind, has no time boundary.

Joe Public: Agreed about the signs, but ... more frequently in recent times, we have signs which are pure text. Usually placed by local authorities for unusual circumstances. Also, electronic signs warning of traffic disturbances etc. - someone who can't read won't be able to understand them.

And you're correct that dyslexia is very different to illiteracy, but employment tribunals will take the case and it is up to the employer to prove otherwise. If someone who can't read takes that route, it is incumbent on the employer to prove that the employee is making a spurious claim.

I'm not sure that the employment tribunal service would check the veracity of the dyslexia before issuing the documents.

Anonymous said...

Dick, discrimination protection might have no time period but employers used to be able to discriminate if discrimination were necessary eg an acting job that demanded a female actor. If literacy is deemed crucial to the job of a driver then to discriminate against someone who is illiterate would not be unreasonable.