Member J Lindsay Tribunal Member G McKay Mr M Harkness v McDonald’s Restaurants Limited — 2021

Mr Harkness worked as a Crew Member at the respondent's Galashiels restaurant from 6 February 2015 until his dismissal on 27 October 2019. The tribunal found that he had a long history of mental health issues and absences recorded as depression, received written warnings in 2017, raised a concern on 24 February 2018 about out-of-date buns, and was later reinstated after successfully appealing an earlier dismissal. It also found that the respondent then held a series of review meetings, discussed shift patterns and adjustments, and obtained occupational health advice.

The occupational health report dated 26 March 2019 said he was unfit for work, that no adjustments would enable a return, and that a sustained return date could not be identified. At later health review meetings the claimant said he did not want to come back to work and asked for a settlement. Ms Temple dismissed him for capability on 23 October 2019, the dismissal was confirmed on 29 October 2019, and the appeal was rejected on 3 December 2019. The tribunal found that capability was the reason, and the only reason, for dismissal; that Ms Temple made the decision; and that the procedure was fair and the outcome within the band of reasonable responses.

The protected-disclosure claim failed because the tribunal found no evidence that the February 2018 complaint about buns influenced the dismissal, noting the time gap and the absence of any involvement by Ms Temple. The disability discrimination claim under s.15 Equality Act 2010 also failed: although the tribunal accepted that the dismissal was something arising from disability, it held that requiring employees to attend work was a legitimate aim and that dismissal was proportionate in the circumstances because there was no realistic prospect of return and no other action the respondent could take. All claims were dismissed and no award was made.