Member: L J Grime Tribunal Member: A Matheson Ms C Gedling v Public and Commercial Services Union — 2022

This case concerned two claimants employed by the Public and Commercial Services Union. By the time of the hearing, the first claimant was pursuing ordinary unfair dismissal, discrimination because of something arising in consequence of disability under section 15 Equality Act 2010, and reasonable adjustments under sections 20 and 21; the second claimant was pursuing ordinary unfair dismissal only. Earlier claims, including unlawful detriment, direct philosophical belief discrimination, victimisation, indirect discrimination, automatic unfair dismissal, harassment and breach of contract, were withdrawn during the hearing and disposed of accordingly. The respondent conceded that the first claimant was disabled for Equality Act purposes.

The dispute arose from a remote Scotland and Northern Ireland Hub team meeting on 3 April 2020. The tribunal accepted the respondent's evidence that both claimants acted in an aggressive and bullying way towards their temporary manager, Ms Boyd, and that the meeting had to be ended because staff were upset. The tribunal relied on the contemporaneous accounts, the later witness statements, and the evidence given by the investigator, dismissal officer and appeal officer. It rejected the claimants' case that the meeting had been a normal discussion or that the true reason for dismissal was the raising of workplace concerns, and it also rejected the suggestion that there had been a hidden or invented reason for dismissal.

On unfair dismissal, the tribunal held that the respondent had a potentially fair reason, namely conduct, and had genuinely believed each claimant guilty of misconduct. It found the investigation reasonable, including the use of written witness statements, the handling of suspension, and the steps taken to progress the matter during the pandemic. The tribunal rejected the challenges based on the disciplinary policy, the delay in the process, alternative duties, the subject access requests, the grievance sequence, the ACAS Code, and the decision to proceed with remote hearings while the claimants were unfit to attend in person. It found that Mr McCarthy and Mr Watson approached matters with an open mind and that dismissal with notice fell within the range of reasonable responses.

The tribunal also said that, if unfair dismissal had been established, dismissal would have been inevitable in any event and each claimant would have been 100% to blame for their own dismissal. Those findings were hypothetical only, because the unfair dismissal claims were dismissed. No monetary award was therefore made.

The section 15 claim failed because the tribunal found no link between the disability-related anxiety relied on and the requirement to proceed remotely, which in any event arose from the Covid-19 context rather than the claimant's disability. The reasonable adjustments claim failed because the tribunal held that no substantial disadvantage in comparison with non-disabled persons was shown, and that a face-to-face hearing was not a reasonable adjustment in the circumstances. As all remaining claims were dismissed or withdrawn, no remedy was ordered.