Mrs F S Paton Mr D Frew Ms Lorraine Thomson v Represented by: Mr G Booth - Consultant The Board of Directors of St Mary’s Kenmure — 2020

The claimant, an Assistant Unit Manager at St Mary's Kenmure, resigned on 8 November 2017 after disciplinary proceedings arising from a 19 July 2017 incident in which a wall panel in a secure unit became dislodged and electrical sparking and a partial power failure were recorded. The tribunal noted that a holiday pay claim was not pursued and was withdrawn at the hearing. The disciplinary process ended with demotion rather than dismissal, and the claimant later appealed before resigning while the appeal process was still ongoing.

On the constructive unfair dismissal claim, the tribunal accepted that the real issue was whether the respondent's disciplinary action and process amounted to a fundamental breach of the implied term of trust and confidence. Applying the authorities it cited, including Western Excavating and Malik, the tribunal found the respondent had reasonable and proper cause to invoke disciplinary proceedings because there was an incident of concern and a basis for investigating the claimant's conduct as the senior person present. It held that the disciplinary suspension, investigation, hearing, and the later appeal timetable did not cross the threshold for breach, so the claimant was not constructively dismissed and the unfair dismissal claim failed.

On disability, the tribunal accepted that the claimant had anxiety and depression, but found the respondent did not know, and could not reasonably have known, that she was disabled until at least 28 August 2017, when an occupational health report was in issue. For that reason there was no duty to make reasonable adjustments before that point. The tribunal also considered the specific adjustments advanced, including more preparation time, postponements, and allowing the claimant's legal representative to attend the appeal hearing, and concluded that the evidence did not show a substantial disadvantage requiring the adjustments claimed.

The tribunal dismissed the discrimination arising from disability claim because it was not satisfied that the disciplinary treatment was because of something arising in consequence of disability. It also rejected the unlawful deduction from wages claim: demotion was expressly available under the respondent's disciplinary policy, that policy formed part of the claimant's contract, and the salary reduction that followed was held to be authorised and correctly implemented. The tribunal therefore dismissed all claims.