Member Mrs P McColl Tribunal Member Mr D Frew Mrs Allison Shearer v South Lanarkshire Council — 2024

The claimant was dismissed for capability after a period of sickness absence linked to the respondent's requirement that she move from Clydesdale Support Base to Kear Secondary School. The respondent conceded disability from 17 June 2022 to dismissal, knowledge from 15 May 2023, that the requirement to work at Kear Secondary School was a PCP, and that it placed the claimant at a substantial disadvantage.

The tribunal found that allowing the claimant to continue or resume working at Clydesdale Support Base would have been a reasonable adjustment. It found that the disadvantage was closely linked to the proposed move, that Occupational Health evidence supported that link, and that the respondent had not shown financial or operational reasons making the adjustment unreasonable. It also found that a reasonable search for alternative roles would probably have produced suitable work, and that the two posts offered at the final capability hearing were not suitable alternatives in the circumstances.

The tribunal held that dismissal was not a proportionate means of achieving the respondent's legitimate aims because less detrimental measures, including return to Clydesdale or a reasonable search for alternative employment, could have served those aims. It also held that no reasonable employer would have insisted on the Kear placement or dismissed without a reasonable alternative-employment search, so the unfair dismissal complaint succeeded. The tribunal rejected the allegation that the move to Kear was a punishment for refusing to supervise vaping.