Member W Canning Tribunal Member R Martin Mrs Paramjeet Kalsi v Represented by: Mr S Swan Solicitor The Scottish Ministers — 2023

Mrs Paramjeet Kalsi was employed by the Scottish Ministers as a Client Adviser from 4 April 2021. The tribunal found that she was a disabled person known to the respondent, with fatigue, memory, and processing difficulties following two strokes. Her role involved processing benefit applications under a probation policy. The tribunal found that the respondent made a series of adjustments over time, including reduced duties and hours, support and training, written guides and checklists, short breaks, a buddy arrangement, a Workplace Adjustment Passport, and a three-month probation extension, but her rejection and error rates remained materially above the normal level and she was dismissed on 5 April 2022 after probation reviews and an unsuccessful appeal.

On the section 15 claim, the tribunal held that the dismissal was because of something arising in consequence of disability, namely the performance difficulties caused by the effects of the strokes, and that dismissal was unfavourable treatment. It nevertheless unanimously held that the respondent had established objective justification: the legitimate aim was effective processing of benefit applications, including avoiding delay to vulnerable claimants, and the dismissal was a proportionate means of achieving that aim.

On indirect discrimination, the tribunal found that the respondent applied a PCP requiring effective performance, expressed in the probation process as an expected rejection rate below 10%. It held there was insufficient evidence to show that this PCP placed disabled people at a particular disadvantage, although it accepted that the claimant herself was disadvantaged; in any event, the same proportionality analysis led to dismissal of the claim.

The reasonable-adjustments claim under sections 20 and 21 was dismissed by majority. The majority held that there was no step it was reasonable to require the respondent to take to avoid the disadvantage, because the proposed shadowing and mentoring package, whether indefinite or time-limited, had no realistic prospect of reducing the claimant's error rate to the required level and would have been disruptive and difficult to arrange. One member would have preferred a time-limited shadowing arrangement with a further probation extension, but that view did not prevail, so no remedy arose.