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A profoundly deaf database developer, who sent email from a colleague's computer using remote access, has won an unfair dismissal and disability discrimination appeal brought by his employer.

He won because his employer failed to facilitate his involvement in the investigation and disciplinary process by not making reasonable adjustments for his disability at his disciplinary hearing.

The employee, Mr Taylor, is profoundly and prelingually deaf. He was not taught to sign at his school for the deaf and was instead taught to adapt to the hearing world by lip reading. He has no mother tongue and has acquired an understanding of English (both lip reading and reading of the written word) without ever having heard any language.

He held a BSc in civil engineering before his IT training, and took a job with OCS Group, a provider of business cleaning services, firstly as a payroll programmer and then as a database developer.

In September 2003, Mr Taylor received an email from a colleague, Ms Campbell. She asked for help with the database system, which Mr Taylor had helped to design. He immediately began work on the problem via remote access. But in doing so, he sent several emails from Ms Campbell's terminal to his own which were found not to be relevant to the work he was doing for Ms Campbell. Ms Campbell reported this to Mr Taylor's line manager. The nature of the emails has not been made public.

Mr Taylor was suspended shortly afterwards for his unauthorised access of Ms Campbell’s email account. Three days later an investigatory meeting took place with Taylor’s line manager, Ms Hellens, whom Taylor wrongly thought would be representing him.

After this meeting a disciplinary hearing took place with Mr Baccolini, the Communications Manager, whom Taylor found very hard to lip-read.

The case report notes that lip reading is an imprecise art and involves continuous guess work. The ability to lip read accurately depends on a number of factors such as the quality of the light, the ability of the person speaking to speak clearly and slowly and the familiarity of the subject matter, words used and speaker to the lip reader. It becomes even more difficult in stressful situations.

Nothing was written for Mr Taylor before or at the commencement of the hearing to explain that it was in fact a disciplinary hearing and, according to the Employment Tribunal, Mr Taylor did not participate effectively or understand what was happening. Yet at the end of the hearing, Mr Taylor was dismissed. The hearing had lasted 15-30 minutes. The Tribunal found that Mr Taylor understood the questions being asked when he provided the written answers; but he did not understand that he was dismissed.

Mr Taylor appealed internally. He tried to explain the matter was a misunderstanding and an over-reaction – and this time he asked for an interpreter.

An interpreter was provided by OCS – but only for two hours. After this time the hearing continued for another one-and-a-half hours during which time Mr Taylor's representative was also required to interpret for Mr Taylor. The hearing was by way of a review rather than a rehearing and the Appeal Chair subsequently confirmed the decision to dismiss.

Mr Taylor then took his case to an Employment Tribunal, claiming unfair dismissal and unlawful discrimination in breach of the Disability Discrimination Act 1995. This time he was successful: the Employment Tribunal concluded that the dismissal was unfair and that OCS breached the Disability Discrimination Act in failing to make reasonable adjustments by providing an interpreter.

OCS appealed the ruling but on 23rd May, the Employment Appeal Tribunal upheld the decision for Mr Taylor.

The EAT wrote: "His dismissal was for conduct, but the decision to dismiss was partly based on his failure to give an adequate explanation. That is a reason which relates to his disability”.

Copyright © 2005, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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