ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111323/2021 Hearing Held at Dundee on 20, 21, and June 2022 Employment Judge: M A Macleod Tribunal Member: E Coyle Tribunal Member: P Fallow Elaine Taylor v Represented by Mr J Lawson Solicitor The British Red Cross Society — 2022

The claimant had worked for the British Red Cross since October 2010 as a shop manager. After a January 2020 restructuring introduced Regional Cluster Managers and Regional Retail Managers, she became unwell in March 2020 and went off sick with stress at work. She later raised a grievance about micromanagement, alleged threatening and bullying conduct by Katie Stuart-Cox and Valda Smith, and the handling of her concerns. The grievance and appeal were not upheld, although mediation was recommended.

The tribunal held that the dismissal on 30 April 2021 was for capability, namely the claimant's long-term sickness absence, and not for some other substantial reason. Applying section 98 ERA 1996 and the Burchell approach to capability dismissals, it found that the respondent genuinely relied on the absence, had reasonable grounds after repeated sickness absence reviews and an occupational health report, and acted reasonably in concluding that there was no foreseeable return date. It also found that the claimant's refusal of mediation, conditioned on a written apology from the managers concerned, did not make dismissal unreasonable.

On the disability discrimination claim under section 15 of the Equality Act 2010, the tribunal found that dismissal was unfavourable treatment because of something arising in consequence of the claimant's disability, namely her absence. However, it held that dismissal was a proportionate means of achieving the legitimate aim of maintaining a workforce able to discharge its duties, given the length of the absence, the absence of a return date, the lack of suitable alternative work and the unsuccessful attempts to resolve the workplace issues.

The reasonable-adjustments claim under sections 20 and 21 failed. The tribunal accepted that the respondent operated a PCP requiring satisfactory attendance and that it did not implement the adjustments sought, but held that reallocating the claimant to a different Regional Retail Manager was not reasonable in the respondent's regional and cluster structure and would have created practical and contractual difficulties. It also found that the respondent had given the claimant an open list of vacancies to consider and that she did not identify any suitable alternative role. Because all claims failed, the tribunal made no remedy award.