Member J Torbet Tribunal Member P Fallow Ms Kirsten Souter v , Solicitor Dundee City Council — 2021

Ms Souter was employed by Dundee City Council as a social worker in the Community Justice section from September 2011. The tribunal accepted that she was disabled within the Equality Act, with disabilities including lupus, anxiety, depression and PTSD, and that her absence record from 2015 onwards led to repeated monitoring periods under the Council's health and attendance policy. The evidence showed a long history of disability-related absences, occupational health involvement, workplace adjustments, a reduction of hours, and permission to work from home when fatigued.

By January 2019 Ms Souter had already been through multiple monitoring periods and was placed on a final support and monitoring period. She then had a further period of absence from August 2019, and occupational health reported on 30 September 2019 that she remained unfit for work, but might improve within a few weeks with medication and counselling. The respondent convened a meeting on 11 October 2019 under paragraph 2.11 of its policy to consider dismissal because she had hit another trigger while on a final opportunity to improve. Martin Dey decided to dismiss her for capability due to unacceptably high absence, and the dismissal was upheld on appeal by Alison Leuchars on 14 November 2019.

The tribunal held that the respondent had followed its attendance policy and had made substantial efforts to support the claimant over a number of years, including occupational health referrals, adjustments to her workstation, a quiet room, reduced hours, supervision support, and home working. It accepted the respondent's evidence that the claimant's role required regular attendance, continuity and reliability, and that further recurrence of absence was likely. The unfair dismissal claim failed because dismissal for capability was a fair reason and the decision fell within the range of reasonable responses under section 98(4) ERA 1996.

On the disability discrimination claims, the tribunal accepted that the dismissal was treatment because of something arising in consequence of disability, namely the claimant's absence record. However, it found the respondent had a legitimate aim in requiring regular attendance and that dismissal was proportionate in light of the claimant's history, the support already provided, and the absence of any realistic measure that would secure sustained attendance. The reasonable adjustments claim also failed because extending the final review period, counselling, and redeployment to a support worker role would not have removed the disadvantage in any meaningful way; the tribunal considered that these options would at most have delayed the same outcome.