Case 8000200/2023 · Employment Tribunal
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TopCase 8000200/2023 · Employment Tribunal
EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000200/2023 Held in Dundee on 16, 17, 18, 19, 22, 23, 24, and April 2023 Employment Judge W A Meiklejohn Tribunal Member Mrs L Brown Tribunal Member Mr A Matheson Ms Gail Lauder
The claimant was a Clinical Specialist Sonographer with a disability consisting of susceptibility to allergic reactions to certain substances. During the Covid-19 pandemic she was unable to wear the masks required for clinical work without experiencing reactions, and the respondent removed her from patient-facing duties while occupational health and management tried to identify a workable way for her to return. The tribunal accepted that the respondent later explored alternatives, including home working, use of other masks, and alternative locations such as Stracathro and Kings Cross Hospital.
On the constructive dismissal issue, the tribunal found that the respondent breached the implied term of trust and confidence when it decided not to place the claimant on COVID special leave when she first became ill in November 2021, despite HR advice that she should be moved onto special leave and paid at full rate. That failure meant she remained on sick leave and used sick pay for around four months. However, the tribunal held that the claimant affirmed the contract by continuing in employment beyond the end of the special leave period at the end of August 2022, so she was not constructively dismissed. Because no dismissal was found, the unfair dismissal questions became academic and were dismissed.
The section 15 EqA claim succeeded only in relation to Mr Conroy's description of the claimant as an "antivaxxer" in the grievance process. The tribunal accepted that the claimant's inability to wear face masks was something arising in consequence of her disability, found that the remark was unfavourable treatment because of that something, and held that the respondent had not shown objective justification. The tribunal rejected the other section 15 allegations, including the vaccination-status question, the "positive loophole"/"mistake" exchanges, the Stracathro discussion allegation, the respiratory-testing allegation, the alleged cover-up, and the home-working proposal.
The harassment claim under section 26 EqA also succeeded only on the "antivaxxer" remark. The tribunal found that the claimant could not experience the conduct as unwanted until she learned of it from the grievance report, and that the report created the relevant environment for the purpose of section 26. The reasonable adjustments claim failed because the tribunal accepted that the respondent had considered alternative locations and did not accept that further respiratory testing was an adjustment the respondent had failed to make. The case was decided on liability only, and compensation was left for agreement or, failing that, a remedy hearing.
This case has mixed outcomes under at least one legal claim type. A tribunal can uphold some allegations and dismiss others under the same legal head, so rows below may represent separate issues or allegation groups from the judgment.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The tribunal found that the respondent breached the implied term of mutual trust and confidence by not placing the claimant on COVID special leave when she first disclosed her diagnosis, contrary to HR advice, but held that the claimant affirmed the contract by remaining in employment beyond the end of the special leave period and so was not constructively dismissed. | Dismissed | — | — |
| Unfair dismissal | The dismissal question did not arise after the tribunal found there had been no constructive dismissal, and it held that the remaining unfair dismissal issues were academic. | Dismissed | — | — |
| Disability discrimination | The section 15 EqA claim succeeded only in relation to Mr Conroy's description of the claimant as an "antivaxxer". The tribunal found that this was unfavourable treatment because of something arising in consequence of the claimant's disability and that the respondent had not shown objective justification. | Upheld | Disability | — |
| Harassment | The section 26 EqA claim succeeded only in relation to the same "antivaxxer" description. The tribunal found that the remark was unwanted conduct related to disability and that it created the relevant state of affairs once the claimant became aware of it through the grievance report. | Upheld | Disability | — |
| Disability discrimination | The sections 20 and 21 EqA reasonable adjustments claim failed. The tribunal found that the respondent did look at alternative work locations and that commissioning further respiratory tests was not the responsibility of occupational health, so there was no failure to make the proposed adjustments. | Dismissed | Disability | — |
The official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
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