Jobs for Jobs: Positive(ish) Discrimination in Action
A marketing firm has caused a degree of consternation, together with some publicity for itself, by advertising for a role and stipulating that applicants must be dyslexic. The advert included a photograph of Apple founder Steve Jobs, who was dyslexic, and stated that the firm required people with a “unique mind, so only dyslexics (like Steve) should apply”.
Chris Arnold, the founder of the firm, and a former Creative Director at Saatchi & Saatchi, justified the advert by saying that “if you wanted to assemble the world’s best choir you’d want great singers, not tone deaf ones. We are simply looking for the best innovative thinkers and they are usually dyslexics.”
Putting to one side the issue of whether this is simply self-promotion by the firm (it is their forte after all), it does raise one or two interesting points.
Depending on the severity of an individual’s dyslexia, it may well qualify as a disability under the Equality Act 2010. This was actually a label that Mr Arnold, himself dyslexic, did not want attaching to the disorder; however, an Employment Tribunal may well determine that it is, as Starbucks recently found to its cost. In February it lost a well-publicised disability discrimination claim arising from its demoting an employee whose health-and-safety related paperwork contained repeated inaccuracies. Starbucks said that this was the product of overt falsification of work records while the employee claimed it to be the result of her severe dyslexia and that the coffee giant had not provided her with the assistance she reasonably sought.
On that basis, the immediate reaction by many would be that the advert must somehow contravene the Equality Act 2010; it is seeking to treat a job applicant more favourably because of a protected characteristic. When considering this question, you might be immediately drawn to S.159 of the Act which allows for positive action in recruitment. This applies where an employer believes persons with a particular protected characteristic are disadvantaged in the workforce; however, that can only be the case where the individual with the relevant characteristic is “as qualified” as the other applicants under consideration and there is no policy of treating those with the protected characteristic more favourably. Neither of these criteria would seem to apply here, as the marketing firm appears not prepared even to consider applicants without dyslexia and that in itself looks and feels to me like a policy of treating dyslexic candidates more favourably.
Whilst s.159 does not apply in this instance, the marketing firm is nevertheless more in the clear than first appears. It would be able to fend off claims by non-dyslexic potential job applicants due to the protected characteristic in question being disability. If the job advert were seeking only applications from candidates based on their age, sex, race, etc., then this would be a clear case of direct discrimination and the firm would be at risk of discovering that not all publicity is good publicity. The difference here is that there is no protection for individuals without a disability from less favourable treatment compared to someone with a disability. This is expressly provided for by s.13(3) of the Act.
BUT here is the problem – just as dyslexia might make some people particularly suited to the job, it makes others clearly not so, depending on its severity. There must be a level at which the firm advertising for dyslexics would be justified in treating the impact of that very condition on a candidate as ruling him/her out of the running. So while a non-disabled person could not sue on those grounds, a candidate with dyslexia severe enough to count as a disability who was rejected on those grounds still could. And that is the case even if, objectively, the non-disabled candidate had a much stronger claim on the role.