In this case, the EAT dismissed an employer's appeal against a finding that it had failed to make reasonable adjustments for a dyslexic employee by requiring him to sign notes of an investigation meeting before he could read and understand them.
Facts
The claimant, Mr Bean, was a long-serving Civil Enforcement Officer with severe dyslexia. He was dismissed by his employer, NSL Limited (NSL), for gross misconduct after NSL decided that he had falsely recorded his whereabouts between approximately 14:09 and 14:28 on 19 April 2019. Before the events which led to his dismissal, Mr Bean had a clean disciplinary record and was seen as good at his job.
The disciplinary allegation depended principally upon data from Mr Bean's GPS handheld device, which he had used for several years. His manual entries showed him walking along a road, whereas the GPS data showed that he remained in a coach rest area. On this basis NSL alleged he had falsely recorded his whereabouts, a practice described as “ghost logging”. Mr Bean maintained that he had carried out the patrol and that the GPS data for that period was unreliable: the device had crashed and had to be rebooted four times during the morning. He accepted that, if he had ghost logged, that could amount to falsification of records, bring NSL into disrepute with its client and justify his dismissal.
During the investigation and disciplinary process, Mr Bean complained that the allegations and technical material were unclear, and appropriate support had not been provided for his disability. In particular, he had been required to sign handwritten investigation notes which he could not read or understand and he had not been allowed to take the notes away for review. He alleged that this amounted to a failure to make reasonable adjustments and was indirect disability discrimination. He also alleged that the requirement for him to sign the notes was an act of harassment, and that a comment made in the outcome of his grievance that the notes were very short also amounted to harassment.
By a majority, an employment tribunal found that Mr Bean had been unfairly dismissed, but he had been guilty of the misconduct alleged. A 100% reduction was made to the compensatory award. The tribunal did not reduce the basic award. The tribunal upheld the claims of indirect discrimination, failure to make reasonable adjustments and harassment.
NSL appealed against the all the findings.
EAT decision
The EAT dismissed the appeal against the unfair dismissal finding. The lack of clarity in the allegations and technical evidence, which persisted even at the hearing, made the dismissal unfair. These flaws were not cured by the internal appeal process. The EAT also rejected NSL's argument that the tribunal had erred in failing to reduce the basic award. The inevitability of Mr Bean's dismissal was properly reflected by a 100% reduction in the compensatory award. The tribunal's focus had rightly been on Mr Bean's misconduct, and it had been entitled to conclude that, notwithstanding that misconduct, it would not be just and equitable to reduce the basic award.
The EAT upheld the tribunal's finding of failure to make reasonable adjustments. The expectation that Mr Bean sign investigation notes before he could read, and therefore understand, them placed him at a substantial disadvantage compared to non disabled comparators. Allowing him to take the notes away for review was a sufficiently identified reasonable step. The fact that Mr Bean had not expressly asked to take the notes away did not alter this analysis, as the duty to make adjustments is on the employer, not the employee.
However, the EAT allowed NSL's appeal against the findings of indirect discrimination. The tribunal had failed to determine group disadvantage and had conflated the distinct questions of justification for indirect discrimination with the requirements of what was reasonable by way of reasonable adjustment.
It also allowed NSL's appeal against the harassment findings. The tribunal had not adequately explained how the relevant unwanted conduct related to disability.
What does this mean for employers?
This case is a reminder that employers disciplining disabled employees should stop and think when implementing investigation procedures, particularly where the disability involves reading and/or processing impairments. Employers should consider carefully what adjustments might reasonably be needed, even if the employee has not expressly requested any specific changes to the usual process. In this case, had the employer ensured that the employee understood the investigation documents before requiring him to sign them, and implemented an adjustment of giving him more time, his reasonable adjustments claim would not have succeeded.
The case also reinforces the legal point that compensation for discrimination and / or an unfair dismissal basic award may still be awarded without any reduction even where a 100% reduction in an unfair dismissal compensatory award is made for contributory conduct.
