Julie Ward Andrew McFarlane Ms Philomena Donnachie v Represented by: Mr B McLaughlin - Solicitor Mr Stuart McMillan MSP — 2020

The claimant was employed as a caseworker from 15 June 2015. The tribunal accepted that she had fibromyalgia, irritable bowel syndrome and migraines, and the respondent conceded disability on that basis. The claimant also sought to rely on depression, but the tribunal held the evidence was insufficient to show that depression was a disability within section 6 Equality Act 2010.

On the disability complaint, the tribunal found that the alleged requirement to attend the 1 March 2019 mediation without a companion was not made out as a provision, criterion or practice. The mediation was voluntary, Mr McMillan had not been asked to agree to a companion in advance, and there was no requirement that the claimant attend alone. The claim for failure to make reasonable adjustments was dismissed.

On the sex harassment complaint, the tribunal preferred the evidence of Mr McMillan and Mr Leitch over the claimant and Ms Harron. It found Mr Leitch was surprised by Ms Harron's unexpected presence at the mediation and was abrupt, but not aggressive. The tribunal held that this conduct was not related to sex and, taking the circumstances into account, it was not reasonable for it to have the effect complained of. On the separate allegation based on the later grievance letter, the tribunal held that Mr McMillan was entitled to tell the claimant the nature of the allegation against her, including the wording used by Mr Leitch, and that this was not harassment.

The constructive dismissal claim also failed. The tribunal examined the matters relied on cumulatively, including timekeeping, the data protection incident, homeworking, interruptions, alleged differential treatment, the return to work in February 2019, the mediation, and the grievance raised by Mr Leitch. It found Mr Leitch was entitled to manage the claimant and did so reasonably, that there was no breach of the implied term of trust and confidence, and that the claimant did not resign in response to any breach. The tribunal also held that, even if there had been a breach, the claimant delayed too long before resigning on 11 June 2019 and had affirmed the contract by continuing to deal with Mr McMillan and engaging with the grievance process. The tribunal dismissed the claim and made no monetary award.