Member J McCullagh Tribunal Member A Shanahan Ms G Wemyss v , Barrister Instructed by Messrs Thompsons Solicitors Scottish Fire and Rescue Service — 2021

The claimant began work with Scottish Fire and Rescue Service in February 2019 as a Firefighter (Control) on an 18-month fixed-term contract due to end on 31 July 2020. The tribunal found that she had performance difficulties in the live control-room environment before her later illness, particularly with pressure, call challenging and gazetteer searching, and that the respondent put in place training, support and development plans. The claimant then developed severe gallbladder pain from November 2019, went off sick on 9 August 2019 after a brief period on watch, and remained absent for the rest of her contract while undergoing treatment, hospital admissions and later surgery.

On disability, the tribunal held that the claimant had a physical impairment and that, as at May and June 2020, the adverse effects could well last at least 12 months even though 12 months had not yet elapsed. The tribunal relied on the medical evidence and the surrounding facts at the time, including ongoing pain, uncertainty as to when surgery would happen, and the possibility of prolonged recovery if open surgery were required. It also found that the claimant's continued diarrhoea after later surgery did not amount to a substantial adverse effect, but that did not alter the position as at the date of the alleged discrimination.

The section 15 claim failed because the tribunal found the respondent did not know and could not reasonably have been expected to know that the claimant was disabled. The occupational health reports described a gallbladder problem expected to resolve after surgery, and the more specific consultant letter referring to high priority status and possible delay due to Covid-19 had not been given to the respondent at the time. In any event, the tribunal held that the non-renewal of the contract was unfavourable treatment arising from long-term sickness absence, but it was justified as a proportionate means of achieving legitimate aims: maintaining attendance and performance standards and maintaining staffing levels for the respondent's statutory function.

The reasonable adjustments claim also failed. The tribunal held that the respondent lacked knowledge for the purposes of schedule 8, that the claim was out of time because the decision not to renew had been taken and communicated by 30 June 2020 while ACAS conciliation did not begin until 28 October 2020, and that it would not be just and equitable to extend time. It also said the suggested adjustments, including extending the contract and pushing the claimant through later stages of the capability process, were not reasonable in the circumstances. The harassment claim failed because the only pleaded act was the non-renewal of the fixed-term contract, which the tribunal found was not related to disability, and the additional incidents mentioned by the claimant were not accepted as factual and were not part of the pleaded case. The fixed-term workers claim was dismissed; the claimant's representative conceded in submissions that it could not succeed because no comparator had been led.