E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104486/2018 Held in Aberdeen on and March, 14, and May and June 2019 Employment Judge N M Hosie Members Mrs S Taylor Ms V Lockhart Mr J Horn v Represented by: Mr R Holland - e Solicitor Grampian Health Board — 2019

Mr Horn had worked for Grampian Health Board since 1995 and was dismissed on 21 December 2017 on ill-health grounds after a lengthy period of sickness absence, a phased return to work from 13 September 2017, and a further absence from 13 November 2017. The tribunal accepted the respondent's case that capability due to ill health was the reason for dismissal, but held that the decision was not fair under s.98(4) ERA 1996 because the respondent had not waited long enough in the circumstances, had not meaningfully consulted him at the dismissal meeting, and had not properly considered alternatives such as redeployment or ill-health retirement.

The tribunal placed weight on the short, pre-arranged dismissal meeting on 21 December 2017, at which Mr Horn was given Dr Close's OH report only when he arrived and was then told that dismissal would follow. It found the meeting lasted less than 10 minutes, that no minutes were taken, and that there was no meaningful discussion. It also found the respondent's handling of an anonymous complaint in October 2017 had caused avoidable distress and had contributed to a deterioration in his health after he had been making progress in his return to work.

On the s.15 disability discrimination claim, the tribunal held that dismissal was unfavourable treatment because of something arising in consequence of disability. It accepted that the respondent's aim of having a skilled CNS fit to perform the role was legitimate, but found the dismissal was not proportionate because there was no pressing need to replace him immediately, he had not been replaced for several months, and no non-discriminatory alternatives were properly explored. The tribunal therefore upheld the s.15 claim.

On the reasonable adjustments claim under ss.20 and 21, the tribunal held that some earlier complaints were out of time, including the late OH referral, the requirement to use annual leave before returning, and the handling of the anonymous complaint. It nevertheless upheld the claim in relation to the 21 December 2017 dismissal meeting and the later appeal process, finding that the procedures were too rigid and not made sufficiently accessible for someone in Mr Horn's condition. The tribunal directed the parties to try to agree compensation, failing which there would be a remedy hearing.