Dyslexia, dismissal and disability discrimination

Two recent employment tribunal rulings involving dyslexic employees reveal how narrow — and how costly — the boundaries of disability protection can be.

The case where dyslexia wasn’t a disability

In Herry v Dudley Metropolitan Borough Council, the Employment Appeal Tribunal confirmed that a dyslexic employee was not disabled under the Equality Act 2010 — despite having been diagnosed with dyslexia since 1996 and spending years on sick leave.

The reason was counterintuitive: his coping strategies were too effective. The tribunal found that his dyslexia did not have a substantial adverse effect on his ability to carry out normal day-to-day activities — the legal threshold required for Equality Act protection — because he had developed sufficiently effective workarounds.

The case raises an uncomfortable question for neurodivergent employees who mask their difficulties. Effective coping strategies, developed over years of navigating neurotypical environments, can inadvertently undermine legal protection. The law protects those whose conditions substantially affect daily life — not those who have learned to hide the impact.

The stress element of Herry’s case produced an equally important ruling. Despite years of sick leave with certificates citing work-related stress, the tribunal found he was not disabled. His stress was a reaction to perceived unfair treatment — a life event — rather than a mental impairment. The distinction matters: stress caused by workplace difficulties is not automatically a disability. Depression, by contrast, is more likely to meet the threshold. None of Herry’s medical certificates mentioned depression.

For HR professionals, the ruling offers some reassurance. Employees on long-term stress-related absence are not automatically protected under disability discrimination law. However, the case should not be read as a green light for inaction. The legal threshold is fact-specific, and the consequences of getting it wrong are significant.

The case where dyslexia cost £470,000

Borg-Neal v Lloyds Banking Group illustrates what happens when an employer handles a neurodivergent employee’s condition badly.

BN, a dyslexic employee, used a racial slur in full during a race awareness training session. His dyslexia had affected how he phrased what was intended as a legitimate question, for which he immediately apologised. Lloyds Banking Group summarily dismissed him.

The tribunal upheld claims of disability discrimination and unfair dismissal, awarding over £470,000 in compensation. The scale of the award reflected BN’s age, his deteriorating mental health following the dismissal and the tribunal’s assessment that he was unlikely to secure comparable employment before retirement.

The employer’s conduct made matters considerably worse. A statement prepared to resist BN’s reinstatement was found to be ‘high-handed’ and to have ‘rubbed salt in the wound’ — resulting in an additional £3,000 in aggravated damages. The tribunal also made recommendations including notifying the employer’s regulator of the discriminatory dismissal.

The case is a stark illustration of how disability discrimination awards are uncapped. Unlike unfair dismissal, there is no ceiling on compensation in discrimination claims.

What both cases mean for HR

Read together, Herry and Borg-Neal map the edges of employer liability. Herry shows that not every neurodivergent employee who struggles at work is automatically protected — the legal threshold requires evidence of substantial adverse effect. Borg-Neal shows that when an employee is protected, and an employer acts without sufficient consideration of how a condition affects behaviour, the consequences can be severe and wide-ranging.

The practical lesson is consistent across both cases: document, investigate and ask questions before acting. In Borg-Neal, Lloyds did not adequately consider how BN’s dyslexia had affected the incident before dismissing him. That failure cost hundreds of thousands of pounds.

The Equality Act does not require perfection. It requires reasonable, considered responses to individual circumstances. Neither case suggests employers must accommodate every difficulty indefinitely. Both suggest that employers who fail to engage seriously with neurodivergent conditions take on significant legal and financial risk.

Cases referenced: Herry v Dudley Metropolitan Borough Council [2017] UKEAT; Borg-Neal v Lloyds Banking Group PLC [2023] UKET 2202667/2022

Sources: Chambers and Partners; Hill Dickinson