ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT GLASGOW Judgment of the Employment Tribunal in Case No: S/4100394/2016 Heard at Glasgow on the th, th, th, th September 20165 Employment Judge: J G d’Inverno, QVRM, TD, VR, WS Members: Mr G Doherty Mr E Borowski Mr J Thurgood v Represented by:- Mr R Wood,15 Communication Workers Union British Telecommunications plc — 2017

The claimant, Mr Thurgood, had been employed by British Telecommunications plc from 27 November 2006 and was dismissed with effect from 26 December 2015 after a notice period. The respondent accepted, for the purposes of the hearing, that during the material period he had the protected characteristic of disability by reason of anxiety and depression. The claim that had originally included direct discrimination under section 13 was narrowed before the hearing, and the tribunal determined the reasonable-adjustments complaint under sections 20 and 21 of the Equality Act 2010 together with the unfair dismissal complaint under section 98(4) of the Employment Rights Act 1996.

The discrimination issue was whether BT was required to create a permanent Customer Service Engineer role for the claimant, restricted to FTTC8 work, by extracting and centralising that work from other engineers across the Borders region, or alternatively to treat the Dumfries storeman role as a vacancy and displace the agency worker who was doing it. By majority, the tribunal found that BT was under no legal obligation to create a post tailored to the claimant's limitations. It held that the proposed arrangement would not be a reasonable adjustment under section 20(3) and would not amount to a viable MCC Part B outcome because it would not constitute regular and effective service. The majority also found that the Dumfries role was not a permanent post available for MCC Part B redeployment and there was no prospect of it becoming one, so BT was not required to displace the agency worker for the claimant.

On unfair dismissal, the majority held that BT followed a fair procedure at both the dismissal meeting and the appeal. The claimant was given the opportunity to make representations, was supported through repeated job searches and adjusted duties, and had been unable to carry out the full duties of a substantive role for a prolonged period. The tribunal accepted that BT had considered the available alternative roles, including the Dumfries storeman role, and was entitled to conclude that there was no permanent post suitable for the claimant. On that basis, the majority held that the dismissal for ill health capability was within the band of reasonable responses and fair under section 98(4) ERA 1996. One member dissented on both the discrimination and dismissal issues.