NSL Ltd v P Zaluski

For justification of indirect discrimination under section 19 of the Equality Act 2010, the employer must show that each relevant PCP is rationally connected to its legitimate aim and reasonably necessary. The tribunal must critically balance the group disadvantage against the employer’s evidenced business needs and reasonable alternatives. It must not substitute an analysis of the claimant’s individual circumstances for that assessment, or rely materially on unsupported speculation.

Conduct is related to race where race materially influences it. Repeated disciplinary threats may satisfy that requirement even though a race-neutral PCP applied to all staff and later disciplinary decisions by other decision-makers were not directly discriminatory.

Aggravated damages for litigation conduct require exceptionally egregious conduct which causes additional injury to feelings.

The claimant, a Polish civil enforcement officer, travelled to Poland after his father’s death during the Covid-19 pandemic. The respondent required quarantine to be included in authorised leave and required staff to return at the end of the leave initially authorised. When the claimant’s absence was extended by quarantine and funeral arrangements, his manager repeatedly warned that disciplinary action could follow. The claimant later received a final written warning.

The Employment Tribunal upheld claims of indirect race discrimination and harassment related to race. It awarded injury to feelings and aggravated damages and made recommendations. It dismissed direct-discrimination complaints concerning the warning and internal appeal.

The respondent appealed the justification finding, the finding that the threats were related to race, and consequential remedy rulings. The central issues were whether the tribunal had lawfully assessed justification, whether the threats related to race, and whether the remedy awards and recommendations could stand.

1. Appeal allowed in part. The appeal against the finding that the PCPs were unjustified succeeded. Justification was remitted to a differently constituted tribunal. The appeal against the harassment finding was dismissed. The aggravated-damages award and both recommendations were quashed; the composite injury-to-feelings award was remitted for reconsideration once justification is decided.

2. For section 19 of the Equality Act 2010, a PCP must be rationally connected to the legitimate aim and reasonably necessary. Proportionality requires a critical assessment of the discriminatory group impact, the employer’s business needs and practicable alternatives. There is no range-of-reasonable-responses margin. The tribunal had focused too heavily on the claimant’s particular circumstances, including the amount of leave initially granted, and insufficiently on the group impact and the distinct justification for the advance-quarantine and no-extension requirements.

3. The tribunal also materially relied on an unsupported proposition that the PCPs had a good chance of causing employees to leave and exposing the respondent to unfair-dismissal claims. That was not judicially noticeable and lacked an evidential foundation. It could not support either rational connection or proportionality.

4. The harassment finding stood. The tribunal was entitled to find that the emails were repeated threats, rather than merely neutral implementation of the PCPs. It found that the manager’s negative view of earlier absences influenced the threats, and that view was itself influenced by the claimant’s Polish nationality. Race was therefore a material cause of the conduct. The race-neutral application of the PCPs and the non-discriminatory decisions of other managers on the final warning did not create inconsistency.

5. Paying the manager to attend the remedy hearing, without improper conduct or a finding that his attendance caused additional distress, could not sound in aggravated damages. The recommendations did not properly follow from the surviving harassment finding and were quashed.

• Employment Appeal Tribunal: allowed the appeal against the indirect-discrimination justification finding and remitted that issue and remedy to a different tribunal; dismissed the appeal against the harassment finding; quashed aggravated damages and recommendations: [2024] EAT 86.
• Employment Tribunal: upheld indirect race discrimination and race-related harassment, dismissed direct-discrimination complaints, and awarded injury to feelings, aggravated damages and recommendations. No citation is stated in the judgment.