EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104113/2020 Hearing at Edinburgh on 4, and May 2022 Employment Judge: M A Macleod Tribunal Member: J Grier Tribunal Member: L Brown Elizabeth Stewart v Sky Subscribers Services Limited — 2022

The claimant, a long-serving Sales Advisor, was dismissed after a lengthy absence from work. The respondent accepted that she was disabled at the material time and that her absence arose from her disability. The tribunal considered claims of failure to make reasonable adjustments, harassment related to disability, and discrimination arising from disability.

On reasonable adjustments, the tribunal found that the earlier warnings related to persistent lateness and productivity concerns, not disability-related absence, and that the claimant had not clearly linked her lateness to disability at the time. It also found no requirement that she be 100% fit to work, no evidential basis for a transfer or bonus-scheme adjustment, no reasonable adjustment requiring flexible start and finish times in the circumstances, and no failure to allow counselling appointments.

On harassment, the tribunal preferred the evidence of Ms Stewart-Cunneen and found that she did not make the alleged comments about needing fewer brain cells, did not call the claimant a skiver, and did not fail to support her. The tribunal found that the respondent had sought occupational health advice, implemented a phased return, allowed unplanned breaks without impact on performance statistics, and allowed time off for counselling.

On discrimination arising from disability, the tribunal accepted that dismissal was unfavourable treatment arising from disability-related absence, but found that avoiding expense and reducing demands on the team were legitimate aims and that dismissal was proportionate. It relied on the length of absence, the lack of information about any return date, and the claimant's failure to engage with management correspondence during the absence. All claims were dismissed.