Ms D v Scottish Ambulance Service — 2020

At an open preliminary hearing conducted by CVP on 14 December 2020, Employment Judge Cowen considered the respondent's application to strike out part of Ms D's case. The application was dismissed. The tribunal said it had to consider the claim at its highest, could not enter into a trial, and could not conclude at that stage that the claim had no reasonable prospect of success.

The background facts recorded that Ms D had worked as an ambulance care assistant from 2004/05 until her employment ended on 11 October 2019. She had longstanding mental health difficulties, including referral to an eating disorder clinic in November 2017 and further absence in July 2019. After an occupational health report said there was prospect of improvement and return to work, she attended an absence meeting on 9 September 2019 and the respondent offered to pay for private treatment. On 20 September 2019 she said she wanted to resign, and the respondent agreed to shorten her contractual notice period from 12 weeks to 3 weeks so that employment would end on 11 October 2019. She later sought to retract the resignation after a meeting on 4 November 2019, but the Head of the Ambulance Service declined to allow rescission on 16 December 2019.

On the resignation issue, the tribunal referred to the authorities on strike out and resignation, including Balls v Downham Market High School and College, Anyanwu v South Bank Students Union, Sothern v Franks Charlesly, Willoughby v CF Capital Plc and Kwik-Fit v Lineham. It held that there was a legal question about capacity and, more broadly, whether the special circumstances exception applied so that the resignation should not simply be taken at face value. The tribunal said evidence about Ms D's mental health at the time of resignation would be needed before that issue could be decided.

On the disability discrimination point, the tribunal treated the pleaded PCP as the respondent accepting the resignation of an employee off work with a severe and enduring mental health condition without first seeking medical advice. It held that whether such a PCP existed and whether it disadvantaged Ms D were factual matters requiring evidence. The tribunal therefore concluded that the claim should proceed to a final hearing. No monetary remedy was determined at this stage.