Member P Fallow Tribunal Member L Grime C v Represented by:25 Mr K McGuire, Advocate Instructed by: Mr A Watson, Solicitor Tayside Health Board and 1 other — 2022

The claimant was a paediatric trainee employed by the first respondent and working clinically with the second respondent, while her training was managed by the third respondent. The tribunal found that she was a disabled person under the Equality Act 2010 by around October 2017, relying on the effects of Coeliac disease and associated symptoms including fatigue, brain fog, gastrointestinal problems, low mood, anxiety and panic attacks. It accepted that the claimant had a long history of training difficulties, but also that her health worsened over time and that she had periods of absence and occupational health involvement.

The tribunal held that the respondents did not have actual knowledge of disability at the relevant time, but that all three ought reasonably to have known by 31 August 2019. It relied on a combination of fatigue reports, fit notes, occupational health contacts, the disclosure of Coeliac disease, the period of absence in spring and summer 2019, and the information available within the training process. It concluded that the first respondent was to be treated as having the second respondent's knowledge under section 109, and that the third respondent should also have been aware by that date.

On section 15, the tribunal accepted that the Outcome 4 decision, the rejection of the appeal, and the dismissal were unfavourable treatment, but it did not accept that Dr Fardon's October 2019 meeting, the use of multi-source feedback, or the other challenged steps met the statutory test. It held that the claimant had not proved that the relevant "something" arising in consequence of disability affected the decisions to more than a minor extent. In any event, if section 15 had been made out, the tribunal held that the respondents had shown a proportionate means of achieving a legitimate aim, namely maintaining consultant standards and protecting public safety within the available training framework.

On reasonable adjustments, the claimant relied on PCPs requiring her to meet the same milestones in the same timescales, to be assessed by the same competency standards, and not to have her disability or symptoms treated as mitigation. The tribunal held that the first two were competence standards within the Gold Guide and therefore excluded from the section 20 duty, while the third was not a PCP. It also found that the claimant had not proved substantial disadvantage, and in any event that the proposed adjustments, including additional time, were not reasonable in the circumstances. The tribunal further held that the Gold Guide appeal process did not oust jurisdiction under section 120(7), but that the section 53 claims against the third respondent failed because the ARCP process involved a competence standard within section 53(7).

The unfair dismissal claim also failed. The tribunal found that the reason for dismissal was the removal of the claimant's national training number, which was some other substantial reason. It held that the first respondent followed a fair process, including consultation and consideration of redeployment, and that the dismissal was fair under section 98(4) ERA 1996. The tribunal noted some procedural concerns in the ARCP appeal process, including missing documents and an incomplete review, but those matters did not change the outcome. No remedy was awarded, and a Rule 50 anonymity order was made for the claimant.