Members: Elizabeth Farrell John Hughes Mr Charles McDougall v Represented by: Mr L G Cunningham -15 Advocate UK Border Force — 2017

Mr McDougall was a Higher Officer at Glasgow Airport. After the 28 January 2014 email about annualised hours, targets, dual training and rosters, he went off sick with work-related anxiety and depression. The tribunal accepted he was disabled under section 6 Equality Act 2010, but found his evidence on the reasons for the absence inconsistent and found that Ms Symes had not seen signs of stress before that date. It concluded that the trigger for the absence was not entirely clear and included a mixture of work issues, a feeling of being undermined, and the police fingerprint and money matter.

The respondent managed the absence through its Attendance Management Policy, occupational health reports in 2014 and 2015, and reports from the claimant's consultant psychiatrist. At the stage 3 hearing on 10 December 2015, Mr Scarcliffe dismissed the claimant because he had been absent for about 23 months, could not yet return to work, and Dr Palmer's report only said he would be fit to engage in discussions about a phased return early in 2016. The tribunal accepted that the claimant remained unfit for work and that the respondent did not know what adjustments would be required because the claimant would not identify the cause or causes of the absence.

The reasonable adjustments claim failed because the alleged working-practices PCP was not identified with enough clarity and, even if it had been the matters in the 28 January email, the tribunal found all Higher Officers complained about those issues and there was no evidence that people with the same disability were particularly disadvantaged. The attendance policy could disadvantage disabled employees because it could lead to dismissal, but the tribunal held the duty to make adjustments had not yet been triggered on the facts found. The direct discrimination claim also failed because the tribunal found no stereotypical assumptions about the claimant's ability to perform his role; the respondent relied on medical evidence, not assumption.

The section 15 discrimination arising from disability and indirect discrimination claims were dismissed. The tribunal accepted that dismissal was unfavourable treatment arising from disability, but held it was proportionate to the legitimate aim of providing an efficient and effective border service and managing a pivotal Higher Officer role during a very long absence. The unfair dismissal claim was also dismissed: capability was the fair reason, the consultation and medical review process was fair overall, and the appeal was not unfair merely because Mr MacMillan treated it as a review rather than a rehearing. The holiday pay claim was withdrawn after the claimant said he had been paid in full; the claim for the 15% salary difference during Injury Benefit failed for lack of proof; any contingent breach-of-contract head of loss also fell away when the discrimination claims failed; and no monetary award was made.