Member Ms L Brown Tribunal Member M r T Lithgow v Mrs Katherine Murphy Lothian Health Board — 2023

Mrs Murphy worked as a Band 2 Clerical Officer in Health Records from July 2018. The respondent accepted that she was disabled for EqA purposes because of stage 4 kidney disease, heart disease and diabetes, and knew of that disability. The tribunal found, however, that her role was scanning with reception cover as and when required, not a contractual entitlement to a regular rota of reception duties. It preferred the evidence of Ms MacNeill and Mr Joshi on the scope of the post and on the meetings and correspondence that followed.

The tribunal rejected the direct disability discrimination case under s13 EqA 2010. It found that the claimant's scanning-only work during the Covid period was driven by occupational health advice, her very high Covid risk, and the need to protect her health, rather than because she was disabled. It also rejected the specific allegations about unsupported return to work, redeployment, medical retirement, the pension quotation, and the alleged comment about leg elevation at reception. On the s15 EqA 2010 claim, it held that any limitation to scanning arose from the claimant's need to reduce hours and the respondent's safety concerns, and that the respondent relied on the legitimate aim of protecting health and safety.

On the reasonable adjustments claim, the tribunal accepted that there was a PCP requiring the claimant, when working, to carry out scanning duties only and report to Denise MacNeill, but it held that this did not place her at a substantial disadvantage compared with non-disabled workers and that the respondent did not know, and could not reasonably have been expected to know, that any such disadvantage existed. It found that the respondent had already put in place phased returns and risk reduction measures, and later offered a different supervisor and training on alternative duties. The tribunal therefore dismissed the s20 and s21 claim.

The constructive dismissal claim also failed. The tribunal found no breach of an express contractual term, no breach of the implied term of trust and confidence, no demotion, and no final straw in the 25 August 2022 letter. It concluded that the respondent was offering a return to the claimant's proper contractual role, with additional training and a different supervisor, and that the claimant's resignation on 16 September 2022 was not caused by a repudiatory breach. No monetary award was made.