Members: Elizabeth Farrell Patrick O'Donnell Mrs Angela Dunn v Represented by: Ms D Flannagan - Solicitor West Dunbartonshire Council — 2019

The claimant was employed on a series of fixed-term contracts and, when her earlier contract was ending, was placed on the respondent's SWITCH redeployment register. She was extended into an eight-week trial period in a clerical/admin post in the Care Contract team, with the arrangement due to end on 5 March 2018 or earlier if the position was reviewed. On 8 January 2018 she developed brachial neuritis affecting her dominant right arm and hand. The tribunal found that she was a disabled person for Equality Act purposes and that the respondent made a number of adjustments, including a later start time, reduced duties, extra time to complete tasks, no minute-taking, training support and attempts to adapt equipment. Occupational health advised that she could not do tasks involving use of her right hand and arm, that recovery had no fixed timescale, and that some functional recovery might occur within about three months.

On the reasonable adjustments complaint, the tribunal found the pleaded PCP was not identified with sufficient clarity. It said there was no evidence of what standard the claimant was required to meet, and it accepted the respondent's case that she was not expected simply to match other staff's timings. Even if the PCP were treated as requiring her to complete the duties of the role to a certain standard, the tribunal held the proposed adjustments would not have been reasonable. It found there was no evidence that Dragon Dictate would have removed the disadvantage, particularly given the claimant's inability to wear a headset because of migraines and the absence of evidence about its use with spreadsheets or calculations. The tribunal also rejected the suggestion that a further extension of the trial period, or a move to another clerical/admin role, was a reasonable adjustment on the facts found.

On unfair dismissal, the tribunal held that the principal reason for dismissal was the end of the fixed-term trial period and that this amounted to some other substantial reason; it did not accept that capability was the principal reason, even though capability was part of the underlying context. It found that the respondent had a record of the claimant's performance, had consulted her, had obtained occupational health advice, had considered whether to extend the trial period, and had reasonably decided not to do so because the evidence did not show that further time would enable her to do the role within an acceptable timescale. The tribunal also rejected the argument that the decision was predetermined or procedurally unfair, including the complaints about the timing of the meeting on 23 February 2018 and the absence of the trade union representative. On discrimination arising from disability, the tribunal accepted that dismissal was unfavourable treatment, but held that the respondent's aim of employing staff capable, with reasonable adjustments where necessary, of doing the essential tasks of the role was legitimate and that dismissal was a proportionate means of achieving that aim. The claim was dismissed in its entirety and no award was made.