ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100913/2022 Hearing at Edinburgh on 16, and January and February 2023 Employment Judge: M A Macleod Tribunal Member: L Brown Tribunal Member: A Matheson Barry Hewitson v 3663 Transport Limited — 2023

Barry Hewitson worked as an HGV Delivery Driver at the respondent's Edinburgh depot from 13 September 2021. On 24 November 2021 he asked for a reasonable adjustment, namely a cap of nine hours a day and 45 hours a week, saying that longer shifts worsened his anxiety and depression. The tribunal accepted that he was disabled and found that the respondent ought reasonably to have known this by 3 December 2021, after the claimant's letter, HR involvement and medical evidence. The respondent began considering the request and referral to occupational health, but before any decision was made Mr McAndie had reviewed tachograph data, suspected falsification, and suspended the claimant on 6 December 2021 on full pay pending investigation.

On the dismissal and protected disclosure issues, the tribunal noted that the claimant lacked qualifying service for an ordinary unfair dismissal claim and approached the dismissal issue as one under s.103A ERA 1996. It found that the reason for dismissal was conduct only, namely the claimant's falsification of tachograph records, and that any complaints he made about CCTV use did not form part of the reason for dismissal. The tribunal held that the January 2022 email about CCTV did not amount to a protected disclosure: most of the points were expressions of view or suspicion rather than disclosures of information, and the one arguable point about data protection and CCTV viewing was not made in the public interest.

On the disability claims, the tribunal found that the respondent had not failed to make reasonable adjustments under ss.20-21 Equality Act 2010 because the request was still being considered when the claimant was suspended and there was no refusal to implement it. The harassment allegations under s.26 and the victimisation allegations under s.27 also failed; the tribunal found that the suspension, the investigation, the use of CCTV material and the request that the claimant engage with the evidence were justified steps taken in the course of the tachograph investigation and were not related to disability or to the claimant's protected acts. The tribunal also refused the claimant's application to amend the claim so as to add a complaint that dismissal itself was an act of disability discrimination.