EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103485/2023 Held at Aberdeen on 11, & December 2023 Employment Judge N M Hosie Members K Culloch S Larkin v Represented by, Mr R Dorrian - Solicitor Mr Gregor Rory McEwan Royal Mail Group Ltd — 2024

Gregor McEwan had worked for Royal Mail since 15 February 1988 and had epilepsy, which the respondent accepted was a disability and had known about for years. After a prior dismissal process, David Noble wrote on 29 January 2021 that future absences relating to epilepsy and associated absences, including part-day absences, may be counted towards the formal attendance procedure. The tribunal found that from 1 February 2021 the respondent routinely counted those disability-related absences rather than keeping the decision under review, and that an occupational health report on 15 September 2022 suggested that accepting an increased and more frequent sickness absence record might be a reasonable adjustment.

The reasonable adjustments claim succeeded under ss.20 and 21 Equality Act 2010. The tribunal held that a reasonable adjustment would have been to continue to discount the claimant's disability-related absences, and it also relied on the absence of a proper risk assessment that might have identified triggers for his epilepsy. It rejected redeployment to an OPG role and ill-health retirement as reasonable adjustments on the evidence before it. On the separate s.15 claim, the tribunal found that the claimant was treated unfavourably by being taken through attendance management and dismissed because of absences arising in consequence of his disability, and it was not satisfied that dismissal was a proportionate means of achieving the respondent's attendance aim.

The harassment claim, based on a remark in the appeal decision document about the claimant continuing to drink alcohol despite the risk of increased seizures, was dismissed. The tribunal held that the remark had to be read in context, including the occupational health material and the claimant's own evidence, and did not meet the statutory harassment test. The unfair dismissal claim succeeded: applying s.98(4) Employment Rights Act 1996 and the band of reasonable responses approach, the tribunal held that a reasonable employer would have waited longer, that the dismissal was premature, and that the decision to dismiss for unsatisfactory attendance was outside the range of reasonable responses. A remedy hearing was directed to be fixed.