Member J Torbet Tribunal Member M Williams-Edgar Ms Patricia Johnston v Represented by: Mr S Milligan Solicitor Diageo Scotland Limited — 2020

Ms Johnston was a disabled production operator with rheumatoid arthritis affecting her hands and wrist. After Project Neptune reduced production lines at the Leven site, the tribunal found that her removal from line 15 and transfer into an undefined backup role on lines 11 and 17 was unfavourable treatment. It accepted that her inability to hand pack was something arising in consequence of her disability and that this was more than a trivial part of the reason for the move. The tribunal rejected the argument that requiring her to use the grievance process was itself unfavourable treatment for section 15 purposes.

The tribunal accepted that Diageo's aim was legitimate: to keep each production line staffed with the strongest crew so the site could run at full potential and meet performance targets after the Project Neptune changes. It held, however, that the means used were not proportionate. The tribunal found the respondent did not sufficiently consider a suitable role for Ms Johnston at the outset, moved her without a clear permanent post, and required her to do tasks such as cleaning for a full shift, when there was no evidence other employees did that work for an entire shift. The section 15 claim therefore succeeded.

The reasonable adjustments claim was dismissed. The tribunal accepted that the respondent had a contractual right to change her role, but held that the question was whether the respondent failed to make reasonable adjustments identified by the claimant. It found that the alternative roles later offered by Mr Brogan, including Manex coordinator and label stores in hall 3, were suitable and were genuine attempts to resolve the situation. The tribunal also found that the claimant's refusal of those roles was not because of anything arising from her disability.

The victimisation claim was also dismissed. The tribunal accepted that Ms Johnston had done a protected act by raising a grievance, but it did not accept that Andrew Grieve subjected her to a detriment because of that act, or that the alleged comments and conduct were proved. On remedy, the tribunal rejected the claimed overtime loss because there was no evidential basis to calculate it. It awarded £11,000 for injury to feelings, assessed in the middle Vento band and in the lower-to-middle range of that band, plus £1,760 interest from 1 February 2018, producing a total award of £12,760. The tribunal declined to make a section 124 recommendation.