EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111387/2021 (A) Held at Aberdeen on May 2022, 7, & 9, 13, & March, April May, June & September 2023 Employment Judge J M Hendry Members: Mrs D Massie Mr R Dearle Mrs C Watson v Represented by Mr M Allison, Advocate Ministry of Defence Police — 2023

Mrs Caroline Watson was a Ministry of Defence Police constable at Vulcan. She suffered from May-Thurner Syndrome and related venous problems, and the tribunal accepted that she was disabled within s.6 Equality Act 2010 by 31 December 2020. After a breakdown in relations with Inspector Vincent Reid and a period of sickness absence, she submitted a flexible working request in January 2021 seeking a fixed pattern of three 12-hour shifts per week, with the business rationale that the site was short staffed and the pattern would allow recovery time for her leg condition.

The flexible working claim under s.80G ERA 1996 failed. The tribunal accepted that the respondent had considered the request, involved Sergeant Craig Reid and Superintendent Stewart, discussed mock rosters and trial options, and ultimately refused the application on 12 April 2021 for reasons including cost, staffing and customer demand. Although the tribunal had reservations about Inspector Reid's role and thought clearer separation of roles might have reassured the claimant, it held that the process as a whole was not unreasonable.

The disability discrimination claim succeeded. The tribunal identified the relevant PCP as the need to work the Vulcan rota, a physically demanding pattern of eight consecutive shifts, and found that this placed the claimant at a substantial disadvantage compared with non-disabled constables. Applying the authorities it cited, including Archibald v Fife Council, Fareham College v Walters, Griffiths v Secretary of State for Work and Pensions, Noor v Foreign Office and Leeds Teaching Hospitals NHS Trust v Foster, the tribunal concluded that it would have been reasonable to adjust her working pattern to about 36 hours over three days, or a similar arrangement that allowed recovery time. It criticised the respondent for taking too narrow a view, not properly exploring wider staffing options, not trialling alternatives and treating the refusal of the flexible working request as if it also resolved the reasonable adjustment duty.

The victimisation claim was dismissed. The claimant relied on her grievance of 8 September 2020 and the later bullying and harassment complaint as protected acts, but the tribunal held that it was not persuaded the grievance wording amounted to a protected act in the circumstances, and in any event there was insufficient evidence that the refusal of the flexible working request was because of those complaints. The tribunal referred to s.27 Equality Act 2010, Durrani v London Borough of Ealing, Shamoon v Chief Constable of the RUC and MOD v Jeremiah in its analysis.

Compensation was not finally determined in the operative part of this decision and a remedy hearing was left to finalise quantum. In its remedy discussion, the tribunal considered the effect of Parry v Clever and Longden v British Coal Corporation on ill-health retirement pension payments, noted that Vulcan was likely to close in the next few years, and assessed issues such as future earnings and pension contingencies; however, no final award was made in the decision itself.