Member R Martin Tribunal Member J Torbet Mr Stephen Smith v Respondent — 2021

The claimant, a Section Manager for Administration at the Glenrothes store, relied on disability discrimination arising from Parkinson's disease, cellulitis and depression/anxiety. The respondent accepted that he was disabled at the relevant time in respect of Parkinson's disease, cellulitis and depression. After investigations into incomplete accident paperwork, an enforcement officer letter, a legal letter relating to a customer accident and GDPR issues, Mr McGrath concluded that the conduct amounted to gross misconduct but imposed a final written warning rather than dismissal. The appeal was rejected by Mr Gallagher.

On the section 15 claim, the tribunal held on a fine balance that being subjected to a disciplinary process was unfavourable treatment, but it did not accept that the final written warning was unfavourable because dismissal was the normal sanction for the gross misconduct found proved and the warning was more advantageous than dismissal. The tribunal further held that the claimant had not shown that the relevant failings arose in consequence of disability. It found his evidence about memory loss, compulsive behaviour and the effect of his health conditions was unclear and inconsistent, and that he had not explained what it was about Parkinson's disease or the medication that caused him to fail to complete or process the documents in question.

The tribunal also held that the claimant had not shown the disciplinary process or the warning were because of any something arising in consequence of disability. It accepted that the respondent regarded the alleged misconduct as serious and that Mr McGrath took the claimant's health into account in reducing the sanction from dismissal, but found that this was a general mitigation exercise rather than a conclusion that the misconduct arose from disability. Even if the warning had been unfavourable, the tribunal found the respondent's aim of avoiding future failures was legitimate and that issuing a final written warning was a proportionate means of achieving that aim.

On the reasonable adjustments claim, the tribunal rejected both alleged PCPs. It found the respondent's disciplinary policy did not impose a PCP of subjecting an employee whose performance was impacted to a disciplinary process, because the policy distinguished misconduct from attendance and performance issues. It also found no evidence of a PCP of issuing final written warnings whenever performance fell below standard. In any event, the tribunal held there was no sufficient evidence of substantial disadvantage, no evidence about any capability procedure, and no basis for concluding that a written warning or different process would have removed the alleged disadvantage. The claim was dismissed in its entirety, and no compensation award was made.