Case 8000048/2022 · Employment Tribunal
EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000048/2022 Held in Glasgow on and December 2023 Employment Judge J D Young Tribunal Member Ms K Ramsay Tribunal Member Mr R Martin “JR” (Anonymity Order made)
The respondent conceded that the claimant was disabled by reason of endometrial cancer and remission during the relevant period. The Tribunal found that the respondent had knowledge of the impairment because the claimant had told her then line manager that cancer had been detected and removed following surgery. The shoulder and neck injury causing the relevant absence was not found to be part of, or connected with, the conceded disability.
The section 15 claim failed because the alleged unfavourable treatment, failure to obtain an updated medical report before the dismissal decision, was not because of something arising in consequence of the claimant's disability. The Tribunal found that the absence and fitness for work evidence related to the shoulder and neck injury, and the occupational health advice indicated a further referral would be appropriate only after substantial improvement in that condition.
The reasonable adjustments claim failed because the PCP relied on was redeployment or alternative roles, but the medical evidence stated the claimant was not fit for any type of employment at the time. The Tribunal found there was no adjustment around redeployment or an alternative role that could be made, and the reason she could not return to work was the shoulder and neck injury rather than the conceded disability.
The harassment claim failed because the weekly contact and warnings about possible incapability proceedings were linked to sustained absence caused by the shoulder injury, not to disability. The Tribunal found the communications were within the respondent's policy, expressed in neutral terms, and that it was not reasonable for the claimant to view them as creating the prohibited environment under section 26.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Discrimination arising from disability under section 15 Equality Act 2010. The alleged unfavourable treatment was failure to obtain an updated medical report before the 21 October 2021 dismissal decision. | Dismissed | Disability | — |
| Disability discrimination | Failure to comply with the duty to make reasonable adjustments under section 21 Equality Act 2010, concerning alleged adjustments to enable return to work during absence between 9 March and 21 October 2021. | Dismissed | Disability | — |
| Harassment | Harassment under section 26 Equality Act 2010, based on application of the respondent's sickness absence policy between 9 March and 21 October 2021. | Dismissed | Disability | — |
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