Member J McCaig Tribunal Member N Richardson Mrs Gillian Ewart-Bannister v Represented by Mr A Bannister Husband Aberdeenshire Council — 2022

The claimant was employed by Aberdeenshire Council as a Primary School teacher and Principal Teacher at Strathdon Primary School. The tribunal heard evidence about difficulties at the school, including incidents involving pupils and a parental complaint, but it treated the serious allegation arising from the 5 December 2019 incident as a separate matter. It found the suspension and investigation into that allegation were appropriate, but they were not the basis of the dismissal found by the tribunal.

The tribunal held that the claimant resigned in circumstances amounting to constructive dismissal under section 95(1)(c) ERA 1996. It found that, after the claimant had been off work with stress and had medical and occupational health advice stating that she was not fit to work or attend formal meetings, the respondent continued to arrange capability hearings. The tribunal accepted that the respondent should have deferred the process, especially once the claimant had become unable to attend and had tried, unsuccessfully, to prepare a written submission. It concluded that the respondent’s conduct breached the implied term of trust and confidence and that the dismissal was unfair under section 98(4).

On the Equality Act claims, the tribunal held that the dismissal was because of something arising in consequence of the claimant’s disability, and that the respondent knew or ought reasonably to have known of the disability from 17 June 2020. It found that the attendance management policy and related capability process were applied to her, and that this placed her at a substantial disadvantage because she was unable to engage with the process in the way a non-disabled employee could. The only reasonable adjustment it found established on the evidence was a deferral of the capability hearing until the treatment recommended to the claimant had taken place. It held that extending sick pay was not a reasonable adjustment in the circumstances.

On remedy, the tribunal declined reinstatement or re-engagement. It awarded a basic award of £4,842 for unfair dismissal and made no compensatory award because it found no recoverable financial loss on the evidence before it. For the discrimination claim, it awarded £10,000 for injury to feelings at the low end of the middle Vento band, plus £933 interest, and made a declaration under section 124 of the Equality Act 2010. The total award was £15,775.