Member McColl Tribunal Member Taylor Mr C Devlin v Surface Ships Limited — 2021

The claimant had worked for the respondent since 2006 and was a weekend shift supervisor at Govan. After a relationship breakdown in February 2020 his mental health deteriorated. On 14 March 2020 he accepted that he had assaulted two colleagues. He was suspended, investigated, assessed by occupational health on 1 May 2020, and later diagnosed by his GP with depression. In 2021 Dr Alison Harper concluded that he met the diagnostic criteria for major depressive disorder and autism spectrum disorder, and that ASD affected his ability to recognise and articulate his emotions.

On the disability discrimination claims, the tribunal found that the respondent knew, or ought to have known, that the claimant was disabled from 14 May 2020 onwards. The direct discrimination complaint failed because the tribunal was not satisfied that the alleged treatment amounted to less favourable treatment: a hypothetical supervisor who had assaulted two colleagues but did not have depression would have been treated in the same way. The s15 EqA claim also failed. The tribunal accepted that the claimant isolated himself from others, but found that this had no influence on the dismissal; it further found that his inability to confide in others, to obtain help, and to show remorse arose from ASD rather than depression, and that the claimant's lack of memory of the incident was not shown to arise from depression. The indirect discrimination and reasonable-adjustments claims were withdrawn during submissions.

On unfair dismissal, the respondent established conduct as the reason for dismissal under s98(2)(b) ERA 1996, and the tribunal accepted that JS and DS genuinely believed the misconduct had occurred and had reasonable grounds for that belief. The dismissal was nevertheless unfair under s98(4) ERA 1996 because the respondent did not carry out as much investigation as was reasonable into the claimant's mental health mitigation, including failing to obtain GP input, refer back to occupational health, or interview colleagues who could speak to his condition and behaviour. The tribunal ordered reinstatement to take effect on or before 1 September 2021, with continuity preserved and back pay to be calculated from 21 May 2020 to reinstatement, subject to deductions for annual leave already paid, other income, and relevant state benefits; no quantified monetary award was set out in the judgment.