ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107494/2020 Hearing by Cloud Video Platform on and October, November and Members’ Meeting on December 2021 Employment Judge: M A Macleod Tribunal Member: J Grier Tribunal Member: J Anderson Mustapha Ait Warahou v Lothian Buses Limited — 2021

The claimant began employment with the respondent in 2012 and moved into a double-deck PCV driver role in 2015. In December 2019 he made a flexible working request for Saturday and Sunday early shifts, saying the request was for family circumstances. The respondent refused the request because of customer demand, staffing difficulties and insufficient work during the periods proposed.

The claimant then became absent from work with depressive disorder and remained signed unfit for work over a prolonged period. Occupational health reports in February and August 2020 stated that he remained unfit for work and that it was too soon to predict when he might return. After meetings and appeal stages, Mr Strachan dismissed him on 18 August 2020 on capability grounds, with eight weeks in lieu of notice, because there was no expected return date and no alternative role available.

On unfair dismissal, the tribunal applied s.98 ERA 1996 and the Burchell approach to capability dismissals. It held that the respondent genuinely believed its reason, had reasonable grounds based on occupational health evidence and consultation, and acted within the band of reasonable responses in the circumstances, including the pandemic context. The unfair dismissal claim was therefore dismissed.

On section 15 Equality Act 2010, the respondent accepted that the claimant was disabled. The tribunal held that dismissal could amount to unfavourable treatment arising from disability-related absence, but accepted the respondent's legitimate aims of attendance management, reducing management burden, supporting return to work and efficient operation, and found dismissal proportionate. It was not satisfied, though with some hesitation, that the respondent knew or ought reasonably to have known of a qualifying long-term disability at the point of dismissal.

The section 19 indirect discrimination claim was withdrawn in the further and better particulars and was dismissed. The reasonable-adjustments claim under sections 20 and 21 failed because the first two PCPs were not proved as respondent practices, and the third PCP did not require the respondent to disregard all sickness absence or treat the claimant as fit for part-time work while he remained unfit. No remedy was awarded.