member S Singh Tribunal member F Paton Ms K Baillie v McCurrach UK Ltd — 2024

Ms K Baillie worked for McCurrach Ltd as a Telephone Account Manager from 8 May 2018 and was dismissed on 23 November 2023. The tribunal recorded performance concerns on the Britvic campaign, a performance improvement plan, a final written warning, sickness absence involving stress and anxiety, a change in campaign funding, and an unsuccessful appeal. It also noted that the respondent did not lead evidence from the manager who took the dismissal decision or from the appeal manager.

On unfair dismissal, the tribunal held that the respondent had not established a potentially fair reason for dismissal because there was no direct evidence from the decision-maker. It went on to hold that, even if capability was the reason, the dismissal was unfair under section 98(4) ERA 1996: there was no clear capability policy, limited training or support, no in-person support meeting, refusal of the claimant's request to swap areas, and no evidence that the respondent properly considered transfer to the new role or the claimant's length of service and condition. The tribunal rejected the respondent's Polkey argument because there was no evidence that a fair procedure would still have led to dismissal.

The disability discrimination claim was dismissed. The tribunal accepted that the claimant suffered from anxiety during the relevant period, but found insufficient evidence that the condition had a substantial and long-term adverse effect on day-to-day activities between March and November 2023, so she was not a disabled person within section 6 Equality Act 2010 at the material time. It added that, in any event, the respondent could not reasonably have known she was disabled. On remedy for unfair dismissal, the tribunal awarded a basic award of £930.44, compensatory loss of £12,095.72 and £500 for loss of statutory rights, with a total of £13,526.16 and a prescribed element of £6,280.47 for recoupment.