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 v Represented by: Ms E Matheson - Solicitor Tayside Health Board — 2024

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.