: JS Anderson AB Grant Mr G Granger v Scottish Fire and Rescue Service — 2024

The claimant was an Operational Firefighter employed by the Scottish Fire and Rescue Service. By the final hearing the respondent accepted that he was disabled within the meaning of the Equality Act 2010 because of both a musculoskeletal condition and depression and anxiety. The tribunal recorded that he had been moved onto temporary amended duties in October 2021, had continued sickness absence from his substantive role, and that Occupational Health, the claimant's treating specialist, and later the Heales report all identified significant ongoing pain, mobility problems, and work-related stress. The Heales report in September 2022 said he was unlikely to be fit to undertake reliable full-time active or desk duties and suggested ill health retirement as an option.

The tribunal found that at the Stage 1 and Stage 2 capability meetings the claimant said he accepted he would never be fit for operational duties and wished to pursue ill health retirement. An IQMP report dated 10 February 2023 concluded that he was disabled from firefighting, that the disablement was likely to be permanent, and that he was not capable of undertaking regular employment; on that basis he qualified for ill health retirement at the higher tier. On 23 March 2023 Area Commander Joe McKay met the claimant, considered the IQMP report, noted that no suitable alternative roles were available, and decided to terminate his employment on ill health grounds. The claimant later appealed both the dismissal and the IQMP decision, but both appeals were withdrawn.

On unfair dismissal, the tribunal applied s.98 ERA 1996 and the Burchell approach. It held that the respondent had a substantial volume of medical evidence, including the IQMP report, and that it was reasonable to rely on that comprehensive material without obtaining a further report. The tribunal found the reason for dismissal was that the claimant had been assessed as not fit for any employment with the respondent and as qualifying for ill health retirement, which was a substantial reason justifying dismissal. It also held that, taking account of the safety-critical nature of the role, the fitness requirements, the absence of suitable vacancies, and the redeployment process already undertaken, the dismissal was fair under s.98(4) ERA 1996.

On the section 15 Equality Act 2010 claim, the tribunal accepted that preventing the claimant from returning to his substantive role while awaiting specialist medical evidence, failing to consider alternative roles in March 2023, and terminating his employment were unfavourable treatment arising in consequence of disability. It held, however, that the first of those measures was proportionate because the respondent had a duty of care and could reasonably await the specialist report before allowing a return to a safety-critical role. It further held that the failure to consider alternative roles at the point of dismissal, and the dismissal itself, were justified by the respondent's legitimate aim of managing staff levels to ensure service delivery and ensuring firefighters were fit to undertake operational roles. The tribunal noted the extended amended duties, support measures, skills profile exercise, redeployment list, and the absence of suitable vacancies, and dismissed both claims. No monetary award was made.