: Mr J Burnett Mr Ashraf Ms Kathleen Graham v Rape Crisis Scotland — 2021

The claimant worked for the respondent charity from 2007 and, from 30 January 2017, held a full-time advocacy worker role with the Scottish Women's Resource Centre alongside a separate helpline contract. The tribunal found that by November 2018 the respondent knew or ought to have known that she was a disabled person for EqA purposes, based on the history of anxiety treatment, medication, work-related stress absences and supervision notes.

In May 2019 the claimant was referred to in a risk assessment as a potential HR risk who had previously been signed off with work-related stress. The tribunal accepted that she was identifiable from the document and that this was a detriment, but it rejected the direct discrimination claim because the reference was found to arise from the breakdown in her relationship with her line manager and concerns about project delivery, not because of disability.

After the claimant complained about the risk assessment in August and October 2019, the tribunal found that the grievance was a protected act. It nevertheless rejected victimisation because the disciplinary process was not principally caused by that grievance; rather, it arose from a wider breakdown in workplace relationships and the allegations about the claimant's conduct.

The tribunal upheld the claims under s.15 EqA and for reasonable adjustments. It found that the claimant's conduct in October and November 2019 arose in consequence of her disability, that the respondent failed to justify the dismissal, and that the respondent's practice of only referring staff to occupational health when facilitating a return to work was a PCP that disadvantaged the claimant. The tribunal held that it would have been reasonable to obtain medical evidence and that the failure to do so left the claimant unable to advance a professional view of her condition.

The unfair dismissal claim also succeeded. Applying s.98(4) ERA 1996 and the Burchell test, the tribunal found the investigation one-sided and pre-determined, with vague allegations, prejudged witness evidence, incomplete review of supervision notes, no meaningful consideration of the claimant's health explanation, and no effective cure on appeal. It awarded a basic award of £7,087.50, a compensatory award of £28,124.00 subject to recoupment, injury to feelings of £15,000 and interest of £1,612.10, making a total award of £51,823.60.