NSL Ltd v Dean Bean: EAT clarifies test for indirect discrimination and disability harassment claims

The Employment Appeal Tribunal has partly allowed an appeal by NSL Limited against an Employment Tribunal's findings in favour of a former Civil Enforcement Officer with severe dyslexia, upholding the finding that his dismissal was unfair while quashing separate findings of indirect discrimination and disability-related harassment for inadequate reasoning.

Dean Bean had worked as a parking warden since 2007, his employment transferring to NSL under TUPE in 2017. He was summarily dismissed in June 2019 after the company concluded he had falsified his patrol log during a twenty-minute period, relying on GPS data from his handheld device that conflicted with his manual entries. Mr Bean, who has severe dyslexia, maintained the device was unreliable and complained during the disciplinary process that he had been made to sign handwritten investigation notes he could not read, without adequate support.

The Reading Employment Tribunal found, by majority, that Mr Bean had in fact committed the misconduct alleged, reducing his compensatory award for unfair dismissal by 100 per cent, but held the dismissal itself was unfair because the allegations and the technical GPS evidence, presented as unexplained black and white printouts, remained unclear even at the disciplinary hearing. The Tribunal declined to reduce his basic award and separately upheld claims of indirect discrimination, failure to make reasonable adjustments, and two instances of harassment: the requirement that he sign meeting notes he could not read, and a comment in a grievance outcome letter describing those notes as "very short."

Sitting in the EAT, Her Honour Judge Tucker dismissed NSL's challenge to the unfair dismissal finding, holding that the distinction between procedural and substantive fairness is not always a helpful one and that, read as a whole, the Tribunal had properly concluded the lack of clarity in the allegations and evidence rendered the dismissal unfair notwithstanding the subsequent appeal process. The refusal to reduce the basic award was similarly upheld as a proper exercise of the Tribunal's discretion under section 122 of the Employment Rights Act 1996.

The appeal succeeded, however, in relation to indirect discrimination. The judgement held that the Employment Tribunal's decision to analyse the reasonable adjustments claim under section 20 of the Equality Act 2010 alongside the indirect discrimination claim under section 19 had led it into error, since the two provisions require materially different analysis. The Tribunal had failed to consider group disadvantage, a distinct requirement of section 19, and had wrongly imported reasoning relevant to reasonable adjustments when rejecting consistency as a potential legitimate aim for justification purposes. The finding of a failure to make reasonable adjustments was itself upheld, the EAT concluding that requiring Mr Bean to sign notes he could not read placed him at a clear disadvantage and that permitting him to take the notes away for review was a properly identified adjustment.

Both harassment findings were quashed. The EAT held the Tribunal had not adequately explained how the conduct complained of, as opposed to Mr Bean's underlying disability, related to a protected characteristic, nor properly addressed the purpose or effect required under section 26 of the Equality Act, including the Respondent's case on intent. The judgement emphasised that a Tribunal must articulate what features of the evidence led it to conclude conduct was related to a characteristic, rather than leaving that link to be inferred.

Disposal has been reserved pending further written submissions from the parties.