ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND)5 Case No: 4104873/2017 Hearing at Edinburgh on 18, 20, 23, 25, August and 6, and September 2021; Members’ Meeting on October 2021 Employment Judge: M A Macleod Tribunal Member: A Matheson Tribunal Member: E Farrell William Main v The Scottish Ministers — 2021

The claimant, a Residential Prison Officer, was absent from work from January 2015 until his employment ended in October 2017. The Tribunal accepted that he was disabled at the material time and found that he had made a protected disclosure to Michael Mathieson MSP on 18 September 2015 about alleged treatment of a young prisoner before the prisoner's death. It also found that the disclosure was made in the public interest and that the claimant reasonably believed it tended to show a criminal offence.

The Tribunal found that the reason for dismissal was capability, not the protected disclosure, disability, or any asserted belief. It accepted the dismissing officer's evidence that she acted independently and relied on the claimant's prolonged absence, occupational health advice, fit notes, and the absence of a suitable redeployment role. It found the respondent had reasonable grounds to conclude there was no reasonable prospect of the claimant returning to his full contractual role or providing regular and effective service.

The Tribunal dismissed the protected disclosure detriment allegations. It found the decision to base the claimant at Glenochil was not implemented in practice and was made in light of concerns about his mental health and return to work, not because he had made a protected disclosure. It also found the reference provided was a standard factual reference and was not shown to be connected to the disclosure.

The disability discrimination claim failed because the Tribunal found the proposed comparators were in materially different circumstances and that the dismissal was based on capability after a lengthy absence rather than disability itself. The religion or belief claim failed because the claimant's stated personal values were not sufficiently delineated as a philosophical belief, and in any event the Tribunal found the dismissal was unrelated to any such belief.