Represented by Mrs M Watson, mother Whitbread Group plc v Represented by Mr I Hartely, Solicitor — 2019

Mr Watson worked as a Costa barista at Next Kirkcaldy from 1 May 2015 until dismissal effective 9 May 2018. By the final hearing the respondent conceded that he was disabled by reason of dyslexia. The tribunal noted earlier proceedings: the unfair dismissal claim had already been dismissed for lack of jurisdiction, and the live issues were disability discrimination under ss.13, 15, 19, 20, 26 and 27 Equality Act 2010 and breach of contract for notice pay.

The tribunal found a long history of lateness, with reasons given at the time including college, car trouble, family issues and a flat battery, but not dyslexia. On the evidence, Liam Reid, Nadine Green, Tracey Whyte, Alan Leishman and Scott Kennaway did not know, and could not reasonably have been expected to know, that Mr Watson was dyslexic until the appeal hearing on 29 May 2018, when dyslexia was mentioned in the context of difficulty reading the disciplinary paperwork. The tribunal accepted that the various complaints formed a continuing series for limitation purposes, so it did not refuse them as out of time.

The tribunal dismissed the disability discrimination claims on the merits. It found that dismissal was because of repeated lateness and failure to improve after the final written warning, not because of disability; that the refusal to promote him to Barista Maestro, the disputed hours, the clocking-in and rota issues, the alleged restriction on working at other stores, the grievance point and the alleged alteration of staff treatment were not made out as discrimination; and that no reasonable-adjustment duty arose on the facts found. It also rejected the harassment allegations, finding no factual basis for the pleaded treatment around breaks, bins, comments, shift changes, discounts, queuing or contact about extra shifts, and no link to disability.

On victimisation, the tribunal held that the claimant had not done a protected act for s.27 purposes. On the contract claim, it accepted that dismissal had been described as misconduct rather than gross misconduct and that notice pay would have been due if jurisdiction existed, but held that the breach-of-contract claim was out of time under the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 and so it had no jurisdiction to determine it. No monetary award was made.