Member G Doherty Tribunal Member J Gallacher Ms S Cairney v Represented by: Mr E Mowat, Solicitor The National Autistic Society — 2021

Ms S Cairney was employed by The National Autistic Society as a support worker at Catrine Bank and the respondent accepted that she was disabled by reason of type 1 diabetes and hidradenitis suppurativa. Her claim also included breach of contract, but that issue was agreed at the hearing, sisted, and was not determined in the judgment. The majority judgment held that her dismissal on 26 February 2020 for capability was fair and that her disability discrimination claim failed.

On unfair dismissal, the tribunal accepted that the dismissal was for capability arising from ill health. It reviewed the history of attendance management, the 2018 and 2020 occupational health reports, phased returns, and the offers and discussions about reduced hours and other support. The tribunal considered that the respondent had not followed the ideal procedure because the claimant's absences were better suited to the long-term absence provisions, but the majority held that the process actually followed, including the reviews, occupational health input, and appeal, still fell within the range of reasonable responses for an employer providing care to vulnerable adults.

On disability discrimination, the tribunal considered section 21 and section 15 of the Equality Act 2010. It accepted that the contractual requirement to work 40 hours per week was a PCP and that the claimant could be placed at a substantial disadvantage, but the majority held that reducing her hours was not shown to be a reasonable adjustment in February 2020 because the medical evidence did not show that it would reduce the absence pattern and the claimant had not pursued earlier opportunities to reduce hours. The tribunal also accepted that dismissal was unfavourable treatment arising from disability-related absence, but held that it was proportionate to the legitimate aim of maintaining safe, consistent support for vulnerable adults. The tribunal therefore dismissed the disability discrimination claim and did not go on to assess remedy.