Member N Quinn Tribunal Member A Shanahan Mr James Donnelly v Represented by: Mr N Paterson, Solicitor South Lanarkshire Council — 2024

This was a disability discrimination case concerning a requirement that Mr James Donnelly attend the office one day per week. The tribunal proceeded on the earlier finding that he was a disabled person on the basis of anxiety and depression. It held that South Lanarkshire Council ought reasonably to have known of his disability by 9 October 2022, about 14 days after the grievance of 27 September 2022, given the occupational health material, the tailored adjustments form, and the lack of follow-up enquiries.

On reasonable adjustments, the tribunal found that the office-attendance PCP put Mr Donnelly at a substantial disadvantage by increasing the risk of anxiety and aggravating his chronic mood disorder, particularly after the occupational health report of 26 April 2023 said he was fit for home working only. It held that the respondent had not taken reasonable steps to avoid that disadvantage and should not have maintained the instruction to attend the office. The tribunal accepted that the respondent had business reasons for seeking office attendance, but said capability or alternative remote arrangements should have been considered instead.

The harassment claim under section 26 was dismissed. The tribunal accepted that there had been unwanted conduct and that it was related to disability, but held that it did not meet the statutory purpose or effect test when assessed objectively and in context. The victimisation claim under section 27 succeeded. The tribunal held that the letter of 9 May 2023 withdrew a temporary one-hour Wednesday meeting arrangement and imposed full Wednesday attendance because the first claim had been presented, and that the respondent did not prove that this was not the reason.

For remedy, the tribunal awarded £13,000 for injury to feelings, with interest of £1,906.67 estimated to 9 March 2024, and £1,282.11 for financial loss, being one third of the agreed loss after taking account of Employment and Support Allowance and tax, with interest of £188.04. The total award was £16,376.82. The tribunal said the award reflected the reasonable adjustments breach and victimisation together, and that it considered the claimant would likely have faced dismissal for conduct issues within about two months had the adjustment issue been handled differently.