Members: John McElwee John Hughes Ms Mandy Davies v Represented by:-15 Ms K Osbourne - Solicitor Scottish Courts and Tribunals Service — 2018

The claimant, a Court Officer, brought claims of unfair dismissal and disability discrimination after being dismissed for gross misconduct following a 22 February 2017 incident in which she told two men in court that the water they had drunk may have contained her medication. The tribunal accepted that she had peri-menopausal symptoms, heavy bleeding, severe anaemia, anxiety and memory issues, and that her managers were aware of her condition and had already made adjustments, including removing jury court and mail duties and arranging access to a toilet when needed.

On the unfair dismissal claim, the tribunal accepted that misconduct was the reason for dismissal under section 98 of the Employment Rights Act 1996, but held that the respondent did not act reasonably under section 98(4). It found that the health and safety investigation had strayed far beyond its remit, produced conclusions and opinions it was not entitled to reach, and tainted the later disciplinary process. The disciplinary investigation was also found to be flawed and unbalanced because it relied on that report without disclosure to the claimant and failed properly to engage with her explanation that she had been confused about whether she had taken or added the medication, together with the medical evidence.

The tribunal held that the respondent did not have reasonable grounds to sustain its belief that the claimant had knowingly lied, brought the respondent into disrepute, or shown no remorse, although it did have reasonable grounds to conclude she had raised her voice in court. Applying the Burchell guidance and the band of reasonable responses approach, it concluded that dismissal fell outside the range of reasonable responses. The appeal did not cure the earlier defects. The tribunal therefore upheld the unfair dismissal claim and ordered reinstatement by 20 June 2018, together with restoration of rights and privileges and £14,009.84 in net arrears of pay.

The tribunal also upheld the section 15 Equality Act 2010 claim. It found the dismissal was unfavourable treatment because of something arising in consequence of the claimant's disability, namely confusion and forgetfulness about whether the medication had been taken or put into the water, and that the respondent's stated aim of having honest and trustworthy staff was legitimate. However, dismissal was not a proportionate means of achieving that aim because the tribunal considered less discriminatory alternatives were available and the respondent had failed properly to take account of the disability-related explanation. It awarded £5,000 for injury to feelings.