ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102204/2023 Hearing Held at Edinburgh by Cloud Video Platform (CVP) on 9, 10, 11, and October 2023, and and January 2024; and Members’ Meeting on February 2024 Employment Judge: M A Macleod Tribunal Member: L Brown Tribunal Member: S Currie James Blair v Represented by Mr T Rushton Barrister The Scottish Ministers — 2024

James Blair worked for the Scottish Ministers from 23 November 2020 until his dismissal with effect from 21 October 2022 as a Team Leader. The tribunal accepted that he was disabled within section 6 of the Equality Act 2010 and that the respondent knew of his conditions. It also held that the complaints before 10 October 2022 formed part of a single course of conduct ending in the dismissal, and that, in any event, it would be just and equitable to allow the claims to proceed.

On direct discrimination, the claimant did not pursue the allegation about the 18 August 2021 attendance decision. The tribunal found that the probationary period was extended after the 10 November 2021 review, but it was not satisfied that this was because of disability; it treated the extension as driven by performance concerns. The tribunal also discussed the reduction to half-pay from April 2022, which followed the contractual six-month absence provision, but its express upheld finding on direct discrimination was that the dismissal itself was discriminatory because the claimant wanted to return to work yet could not do so without the adjustments that should have been in place.

On reasonable adjustments, the tribunal accepted that the respondent knew of the claimant's disability from the outset. It found that the claimant required auxiliary aids to avoid substantial disadvantage and that the respondent failed to provide them within the probationary period. The aids identified in the evidence included a height-adjustable sit/stand desk, ergonomic chair, 27-inch monitor, ergonomic keyboard and mouse, foot rest and hot and cold fan. The tribunal accepted the claimant's evidence that, without those aids, they were materially disadvantaged in carrying out their work.

The tribunal also upheld the PCP-based reasonable-adjustments complaint in relation to the practice of treating more than seven days' sickness absence as unsatisfactory attendance. It found that this PCP was applied to the claimant, that it effectively extended the probationary period, and that disapplying it was a reasonable step the respondent did not take. The tribunal did not proceed with the separate proposed PCP about returning to the same role or team, and the Covid-absence point was not pursued. Liability was determined only; a separate remedy hearing was to be listed.