Member L Brown Tribunal Member J McCaig Ms D Mihaylova v Represented by Mr C Adjei Barrister Western Isles Health Board — 2024

The claimant was employed by Western Isles Health Board as a consultant psychiatrist from 1 September 2020. She developed myelopathy in 2021, and the respondent accepted that she was a disabled person for Equality Act purposes. Her role required a one-in-two on-call rota, including night-time on-call, and the tribunal found that the respondent had a PCP requiring consultant psychiatrists to perform that on-call duty. After surgery and occupational health input, the claimant returned with restrictions and later remained unable to undertake night-time on-call because of the effects of her medication and the impact on driving and clinical decision-making.

On the reasonable adjustments complaint, the tribunal held that maintaining a second locum to cover the claimant’s on-call duties, or advertising for two locums to job-share the post, was not a reasonable adjustment. It accepted evidence about the difficulty of recruiting consultant psychiatrists in Scotland, the respondent’s inability to fill the permanent second consultant post, and the significant cost of locum cover. The tribunal referred to figures including projected annual locum costs of about £366,000 for the claimant’s on-call cover, overall locum spend of £1,073,308 in 2022/23, and the effect on the mental health and psychiatry budgets. It also found that any adjustment would likely be required for the foreseeable future because the medical evidence did not identify a near-term point at which the claimant would be able to resume on-call duties.

The tribunal also dismissed the s.15 Equality Act complaint. It accepted that dismissal was unfavourable treatment because of something arising in consequence of the claimant’s disability, namely her inability to undertake night-time on-call, but found that the dismissal was a proportionate means of achieving legitimate aims. Those aims included operating within budget, allocating resources appropriately, running healthcare services effectively, meeting patient demand, and complying with service provision requirements. In reaching that conclusion, the tribunal relied on the cost and practical impact of continuing the adjustment, including disruption to services and pressure on other staff, and found that there was no less discriminatory means of achieving the same aims.

The unfair dismissal claim was also dismissed. The tribunal accepted capability as the potentially fair reason for dismissal under s.98 ERA 1996, and held that the respondent had reasonable grounds for its belief based on the medical evidence and the claimant’s ongoing inability to work night-time on-call. It found no procedural unfairness in starting the attendance process at stage 2, in considering redeployment before the stage 3 outcome, or in the timing of the appeal process. The tribunal concluded that dismissal fell within the range of reasonable responses in the circumstances, and noted that the claimant withdrew her appeal on 21 August 2023.