Member Grime Tribunal Member Currie Mr A Smith v Health Board — 2023

The claimant was employed as a Domestic Assistant at the Royal Infirmary of Edinburgh and the tribunal found he was a disabled person at the relevant time because of shoulder, neck and knee pain. The evidence showed that his duties had previously been adjusted for him, including use of a lift key, assistance with medication that could make him dizzy, removal from A&E work in 2019 at his request, and exemption from high-level theatre cleaning because of his knee pain.

The central incident occurred on 9 July 2022, when the claimant was asked to work in A&E until 10pm because of a change in how A&E cleaning was organised. He refused, shouted at LM and JM, and left the room. The tribunal found there was no evidence that he had been belittled, and it did not accept that he was required to do work he was incapable of doing. It found that he would have been working with another Domestic Assistant, would not have been expected to clean the same number of theatres as before, and could have received assistance if needed. On that basis, the harassment complaint and the first discrimination arising from disability complaint failed.

The tribunal also rejected the reasonable adjustments claim. It found that the claimant had not proved a PCP requiring cleaners to work in all areas of the hospital without adjustment to duties, and the evidence of earlier accommodations undermined that case. On the later occupational health point, the tribunal accepted that the respondent did not arrange a meeting after the September and October 2022 reports, but found that this was because it wanted to investigate the relationship breakdown the claimant had described, including his stated inability to work with JM, rather than because of his disability or what the respondent believed he could do. The proposed amendment to add victimisation was refused because it was late, out of time, and would have prejudiced the respondent. The age discrimination and unlawful deduction complaints were withdrawn by the claimant and the judgment records them as dismissed following withdrawal. No monetary award was made.