Case 4100101/2021 · Employment Tribunal
ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 4100101/2021 (A) Issued Following Open Preliminary Hearing Held at Edinburgh on th of July 2021 at 10.30 am Employment Judge J G d’Inverno Mrs S Paterson
At the open preliminary hearing on 14 July 2021, the tribunal accepted by concession that Mrs Paterson had disability within the meaning of the Equality Act 2010 during the period 6 to 18 August 2020 by reason of ischaemic heart disease, benign paroxysmal positional vertigo, and anxiety and depression. It did not accept on the evidence that post traumatic stress disorder was established as a separate qualifying impairment. Applying the approach in Goodwin and Royal Bank of Scotland v Morris, the tribunal held that the claimant had not proved PTSD on the balance of probabilities. It also recorded that, for the discrimination and harassment complaints, the claimant's husband was accepted as a disabled person at the material time.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The claimant advanced an apparent 'automatic unfair dismissal' complaint based on an offer to prove that dismissal was for a reason relating to disability. The tribunal held that such a complaint has no statutory basis under s.104 ERA 1996 because Equality Act rights are not among the rights listed there, and it dismissed the claim for want of jurisdiction. It also noted that an ordinary unfair dismissal claim under s.98 ERA 1996 would require two years' continuous service. | Dismissed | — | — |
| Disability discrimination | Direct discrimination under s.13 EqA 2010 was considered only at an open preliminary hearing. The tribunal declined to strike out the allegation at paragraph 1(b) of the agreed list of issues, where Sandra McNay was alleged to have said, 'Go home to your husband and do something useful instead of doing something here', because that wording could permit an inference linked to the husband's disability. It declined to strike out the remaining direct discrimination allegations, but held that allegations 1(a) and 1(c)-(h) had little reasonable prospect of success for Rule 39 purposes and were capable of being the subject of deposit orders; no final merits disposal was made. | Other | Disability | — |
| Disability discrimination | Indirect discrimination under s.19 EqA 2010 was based on the alleged PCP of requiring the claimant to undertake waking night shifts and sign a Working Time Regulations opt-out form on 11 August 2020. The tribunal did not strike out the claim, but held that it had little reasonable prospect of success because the claimant was not in fact required to undertake waking night shifts or work in excess of 48 hours. No final merits disposal was made. | Other | Disability | — |
| Disability discrimination | Harassment under s.26 EqA 2010 was considered on the agreed list of issues. The tribunal held that the allegations at paragraphs 1(a) to 1(f) and 1(g)(ii)-(viii) had little reasonable prospect of success because the claimant had not given notice of a basis showing the conduct was related to disability. It did not strike out allegation 1(g)(i), that Sandra McNay and Frank Cearnes did not wear masks at the probation meeting, because that could potentially be related to the claimant's disability and perceived vulnerability to Covid-19. No final merits disposal was made. | Other | Disability | — |
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