Member I Ashraf Tribunal Member D McFarlane Miss D Brakenridge v Ayrshire & Arran Health Board — 2024

The claimant, a midwife practitioner employed since 1998, was accepted as having a disability consisting of anxiety and claustrophobia. The respondent was following Scottish Government and NIPCM guidance during the COVID-19 period, including the requirement for staff in clinical settings to wear surgical face masks. The tribunal found that managers, especially Ms Blake, made repeated efforts to find work that the claimant could do from home or outside direct clinical care, including work connected to the birth reflections clinic and other remote tasks. The claimant withdrew her claims under sections 13 and 27 of the Equality Act 2010, and those claims were dismissed under rule 52.

On the section 15 claim, the tribunal accepted that the claimant was treated unfavourably because from late 2021 to May 2023 she was not allowed to return to her clinical midwifery role while she could not wear a mask. It also accepted that the inability to wear a mask arose in consequence of her disability. However, the respondent was pursuing legitimate aims of compliance with government guidance, health and safety, service management, and patient and staff protection. The tribunal held that the respondent had tried to find alternatives and that its response was proportionate, so the discrimination arising from disability claim was dismissed.

The indirect discrimination and reasonable adjustment claims were also dismissed. For indirect discrimination, the tribunal accepted that the mask rule was a provision, criterion or practice, but it was not satisfied that the claimant had shown that people with anxiety and claustrophobia shared a group disadvantage, and in any event it held that the PCP was justified. On reasonable adjustments, the tribunal held that the proposed steps would not alleviate the disadvantage and were not reasonable, because the respondent still had to follow the applicable guidance and infection control framework.

The tribunal rejected the harassment allegations arising from the meetings in November 2021, July 2022, November 2022 and February 2023, as well as the May 2023 email about rotation out of the neonatal unit. It found those events were part of managing the claimant's return to work and resolving an impasse, rather than unwanted conduct related to disability that created a hostile environment. The tribunal also dismissed the whistleblowing claim under section 43B ERA 1996. It accepted that the claimant had made protected disclosures about PCR tests, masks, and COVID-19 vaccine safety, but held that the alleged detriments were not shown to be caused by those disclosures: the NNU rotation predated them, the BRU decision turned on access to full medical records, and the lack of work reflected the limited remote options and later management changes. The hearing was on liability only, so no monetary award was made.