ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Conjoined Cases No: 4104090/2016 and 4106953/2017 Heard at Edinburgh on 18, 19, 25, 26, and September, 02, 03, October and 01, and November 2018 and on February and February 2019 and Deliberations on February, March 2019, and and April 2019 Employment Judge J G d’Inverno, QVRM, TD, VR, WS Tribunal Member Ms P McColl Tribunal Member Mr S Currie Ms M Hamilton v Represented by:- Mr M Allison, Solicitor Fife Council — 2019

The tribunal heard conjoined claims by Ms Hamilton against Fife Council and accepted that she had Asperger's syndrome, a diagnosis the respondent knew about from December 2013. The direct discrimination claim under section 13 was narrowed to one alleged remark on 3 March 2016, namely that her absence the previous day was in part due to her disability, but the tribunal did not find that remark proved and dismissed that claim.

On the reasonable adjustments issues under sections 20 and 21, the tribunal held that LNCT 06 was a provision, criterion or practice and that paragraph 29 required the claimant's health, including Asperger's, to be taken into account when deciding whether she should be identified as surplus. It found that Ruth McFarlane did not take that factor into account when the claimant was selected as surplus on 2/3 March 2016. It also found that the meeting on 26 April 2016 was not truly informal: the claimant was given no proper notice of its purpose, no opportunity to prepare, and no right to be accompanied, although she had asked to attend the following day with her union representative. The tribunal upheld the section 21 claim on those two matters only.

The harassment claim under section 26 was dismissed. The tribunal did not find proved the alleged conduct relied on in relation to the return-to-work arrangements, the alleged collusion in statements during the grievance investigation, or the alleged remark said to have been made to Karen Fotheringham. It also held that the allegation at issue 2.4(d) was out of time.

The victimisation claim under section 27 was also dismissed. The tribunal held that some of the acts relied upon as protected acts, including the grievances of 21 and 27 June 2016 and the tribunal claim of 26 July 2016, were not properly before it because of time-bar issues. It further found that the decision to identify the claimant as surplus had already been taken before the protected acts, and that no causal link was proved between the remaining alleged detriments and any protected act.

The tribunal dismissed the section 15 discrimination arising from disability claim. It did not accept that the witness statements in the grievance investigation were deliberately false or based on prejudice or stereotyping, and it did not find that the late appeal against the grievance outcome was delayed because of the claimant's Asperger's. The constructive dismissal claim under section 95(1)(c) of the Employment Rights Act 1996 was also dismissed: the tribunal found only one potentially repudiatory act, the failure to apply paragraph 29 of LNCT 06 in March 2016, but held that the claimant affirmed the contract by continuing in employment and engaging with grievance and occupational health processes until her resignation on 13 September 2017, and that the August 2017 job advertisement was not a final straw.

On remedy, the tribunal awarded damages for injury to feelings of £6,250 for the March 2016 failure to make adjustments and £2,300 for the 26 April 2016 meeting, totalling £8,550, with interest ordered at 8% per annum from the relevant dates. No basic award or compensatory award was made because the constructive dismissal claim failed.