Member E Farrell Tribunal Member K McKenna Ms M Donnelly v Represented by: Mr R Dorrian - Solicitor South Lanarkshire Council — 2023

Ms Donnelly had long service with the respondent and worked as an Advertising Assistant until her role was displaced in 2021. She was offered and then matched to a Personnel Assistant post after appeal, but she went off sick in November 2021 with stress and remained absent. The respondent accepted she was disabled for Equality Act purposes and had constructive knowledge of that disability. During the absence the respondent held monthly attendance support meetings, referred her to PAM Assist and Early Intervention, obtained occupational health reports, and considered ill health retirement, which was refused. At the outset of the hearing the tribunal refused a postponement application based on the way the section 15 case had been pleaded, holding the dismissal reasons were clear and no amendment was necessary.

On unfair dismissal, the tribunal accepted capability was the reason for dismissal and applied section 98 ERA 1996 together with the authorities it was cited, including Spencer v Paragon Wallpapers, SS v Dundee City Council, and East Lindsay District Council v Daubney. It found the respondent had consulted with the claimant, informed itself about her condition and prognosis, and considered alternatives. The tribunal accepted the respondent was entitled not to obtain a further up-to-date medical report because the claimant was unfit for work in any capacity and there was no indication that an updated report would change that position. It also found there was no useful purpose in a stress risk assessment while the claimant was absent and unable to return to work.

The tribunal concluded that, after about 11 months of absence, the respondent could not reasonably be expected to wait any longer. It accepted that the claimant was on the point of nil pay, that the absence was adding to her stress, and that the absence was straining the service because a team with two Personnel Assistants was operating with only one. The unfair dismissal claim was therefore dismissed.

On the section 15 Equality Act claim, the tribunal found that dismissal was unfavourable treatment, that the relevant something arising in consequence of disability was the claimant's absence, and that the dismissal was because of that absence. It accepted the respondent's legitimate aim was addressing long-term absence through its Maximising Attendance policy. The tribunal held dismissal was proportionate because the respondent had tried support measures, the claimant could not contemplate returning to work, voluntary severance was not available, ill health retirement had already been refused, and a career break had been offered but rejected. The discrimination claim was dismissed and no remedy was awarded.