Gallacher and McPherson Mr G Wishart v Represented by: Mr I Burke - Solicitor Scottish Ambulance Service Board — 2023

The claimant was a relief paramedic with type 1 diabetes. The tribunal accepted that he was disabled at all material times and known by the respondent to be disabled. From around February 2021 his C1 driving entitlement was withdrawn, and the respondent dealt with his return to work through its capability policy, after taking occupational health advice and considering its diabetes guidance document.

On the section 15 claim, the tribunal found that the respondent did not act unlawfully by using the capability policy, and it did not accept that the diabetes guidance had been ignored. It did accept that requiring the claimant to work as an attending clinician for the full shift, rather than drive, was unfavourable treatment arising from the loss of his C1 entitlement, but it held that this was a proportionate means of achieving a legitimate aim. The tribunal accepted the respondent's aim of using the claimant's clinical skills and maintaining service delivery during operational pressure, and it found that the claimant could remain in his contracted role with driving removed.

The tribunal did not accept that starting a disciplinary investigation in December 2021, while the stage 3 appeal was still ongoing, amounted to unfavourable treatment. It found the investigation was launched because the claimant had not attended rostered shifts and that the respondent needed to understand the factual position. It also rejected the complaint that the February 2022 grievance had been refused as a grievance because of disability; the tribunal found that the respondent treated it as overlapping with the capability process and did not refuse it for reasons connected with the claimant's disability.

On the harassment claim, the tribunal considered each alleged incident between June 2021 and January 2022. It found that several items, including the attendance-management letters, the 2 August 2021 missed call, the request that the claimant use accrued annual leave, and the system entry recording him as on unpaid leave/absent without consent, were either standard or reasonable management action or not related to disability. It accepted that some later events, including the stage 3 meeting, the outcome letter and the appeal process, were unwanted and disability-related, but held that they were not done with the purpose of violating the claimant's dignity or creating a hostile environment, and that it was not reasonable for them to have that effect.

The tribunal therefore dismissed both the section 15 discrimination arising from disability claim and the section 26 harassment claim as ill founded. It recorded that the remaining claims were withdrawn and dismissed under Rule 50. Because no claim succeeded, no remedy was awarded and time limits did not need to be determined.