E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4122942/2018 Held in Aberdeen on & June 2019 Employment Judge N M Hosie Tribunal Member A W Bruce Tribunal Member V Lockhart Miss M Brander v Represented by Mrs H Brander –20 Mother Bachlaw Ltd t/a Lillies Kindergarten — 2019

Miss Brander began work as a Practitioner at Lillies Kindergarten on 5 March 2018. At a preliminary hearing on 27 March 2019, Employment Judge Hendry decided that she was disabled for the purposes of the Equality Act 2010, but the merits tribunal later held by majority that the respondent did not know, and could not reasonably have been expected to know, that she had a disability or that it was liable to place her at a substantial disadvantage. The tribunal noted that she had said on her application form that she did not have a disability, had not disclosed depression at interview or in supervision, and her fit notes referred to a stress-related problem.

The reasonable adjustments complaint failed because the majority found that the relevant PCP was the requirement to be fit and able to perform the substantive duties, but that the duty to make adjustments was not triggered on the facts. At the 1 August 2018 welfare meeting, Ms Davis asked questions about the claimant's health after taking advice, but the claimant said she had not been diagnosed with depression, had no other mental health diagnosis, and was not on medication or counselling. The majority held that, in all the circumstances and given the information available, it would not have been reasonable to conclude that the respondent ought to have known of a disability. A dissenting member would have found that further enquiries and adjustments should have been made.

The direct discrimination complaint failed because the tribunal preferred the respondent's account of the 1 August 2018 meeting and found that the claimant resigned voluntarily after saying she was not happy and did not want to work at the Kindergarten. It rejected her evidence that she had been forced to resign, that the minutes had been fabricated or altered, and that she had been prevented from leaving. The harassment complaint also failed: the tribunal found that Ms Whitelaw's blunt challenge in May 2018 about disposal of urinated water, which was then addressed through supervision, and the later welfare meeting did not amount to harassment related to disability. The claim was dismissed in its entirety and no award was made.