Member G Coyle Tribunal Member A MacDonald Ms Jill Armstrong v Respondent — 2021

The tribunal found that the claimant was a disabled person within section 6 Equality Act because of oral dysplasia and its effect on her speech. It accepted that she had worked successfully under Mr Friel for a number of years, but found the relationship deteriorated in 2018 after staff concerns were raised about her management style and after emails between her and Mr Friel became increasingly strained. The tribunal did not accept the claimant's case that Mr Friel orchestrated the complaints or that the respondent's Directors were acting on his direction.

The tribunal found that the staff concerns were raised by Mr Gary MacDonald with Mrs MacDonald at the end of May 2018, were then checked informally, and were later investigated formally on advice from Mentor. It accepted that members of staff gave statements freely, that Mr McKie investigated the grievance and the disciplinary matters, and that Mr McKie was an independent decision-maker. The claimant was given a final written warning on 26 September 2018 after the tribunal accepted that some of the conduct alleged against her had occurred and was serious enough to justify that sanction.

The tribunal also found that the later dismissal on 3 January 2019 followed a further disciplinary process about breach of confidentiality in relation to the protected discussions with Mrs MacDonald. It accepted that the claimant had spoken to a colleague about the discussions, that this amounted to misconduct, and that the existence of the live final written warning meant dismissal was open to the respondent. On the unfair dismissal claim, the tribunal applied the Burchell approach and the band of reasonable responses test, and held that the investigation and disciplinary procedure were reasonable in the circumstances.

On the discrimination claims, the tribunal dismissed direct disability discrimination because there was no evidence of less favourable treatment of a comparator and no causal link between disability and the sick pay decision or the dismissal. It dismissed discrimination arising from disability because the dismissal was found to be for misconduct, not because of the claimant's speech impairment or anything arising from it. It dismissed harassment because it preferred the respondent's evidence on the alleged mimicking and comments, held that the police report and sick pay decision were not harassment, and found the dismissal was not related to disability. It dismissed victimisation because the disciplinary action, final warning, police report, further discipline, and dismissal were found to have been driven by the staff complaints, the confidentiality breach, and the claimant's conduct rather than by the grievance she had raised on 17 July 2018.