EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102767/2019 Held at Aberdeen on 21, 22, & August, 8, & November 2023 Employment Judge N M Hosie Members K Pirie A N Atkinson Ms J Crampshee v Represented by Mr M Allison, Advocate, instructed by Quantum Claims Dignity Funerals Limited — 2024

Ms J Crampshee worked as a Funeral Director, was diagnosed with cancer on 26 January 2016, and was absent for a long period of treatment and recovery. After Dignity Funerals Ltd acquired Aberdeen Funeral Directors through TUPE on 3 March 2017, the respondent became aware of her employment in September 2017 and arranged a welfare visit on 21 September 2017. She returned to work on 29 January 2018 on an informal phased basis, initially for three days a week and three hours a shift, with no on-call duties and no heavy lifting. The tribunal found that this return was not set out in a written plan and that the claimant was largely left to work out what she could do for herself.

Occupational health reports dated 12 April 2018, 13 June 2018 and 5 September 2018 said that she was disabled for Equality Act purposes and was fit for work with adjustments. In her email of 25 July 2018 she asked for two specific adjustments: not to work on the on-call rota and not to do heavy lifting or lifting at height. The tribunal accepted that she regarded those adjustments as temporary while she rebuilt her strength. It found that the respondent focused on requiring an end date for the adjustments, and that no temporary period with the requested adjustments in place was offered. The alternative Funeral Service Arranger/Administrator role offered on 3 October 2018 was lower paid and was rejected by the claimant.

The tribunal held that the respondent had failed to make reasonable adjustments under ss.20-21 Equality Act 2010. It identified the relevant PCP as the requirement to perform the full duties of a Funeral Director, including on-call and heavy lifting/lifting at height, and found that this put the claimant at a substantial disadvantage. The tribunal did not accept that the respondent had shown that the requested adjustments were not practicable, noting that the business had functioned while she was absent and that there was no clear evidence that covering the rota for a temporary period would have caused the detriment asserted. It also held that the offer of an alternative role was not an პასუხ to the duty to make adjustments to the existing post.

The tribunal further held that the dismissal on 29 October 2018 was discrimination arising from disability under s.15 Equality Act 2010. It found that the dismissal was unfavourable treatment arising from the claimant's inability to do on-call work and heavy lifting, and that the respondent had not established objective justification. On unfair dismissal, the tribunal accepted capability as the reason but held that the dismissal was unfair under s.98(4) ERA 1996 because the investigation was flawed, the respondent had not properly assessed what temporary adjustments could be tolerated, and a reasonable employer would have waited longer rather than insist on a fixed end date. In a note dated 6 December 2023, the tribunal said it had decided to award a total of £60,940.62 and invited submissions on grossing up because the figure exceeded the £30,000 tax-free threshold; the written judgment did not set out a breakdown of that total and said a remedy hearing would determine the gross-up element.