Mr R Millar (deceased) v Represented by:10 Mr S Smith - Solicitor AKP Scotland Ltd — 2025

The claimant was employed by AKP Scotland Ltd as a Senior Estimator from 30 October 2023 until 25 October 2024. He had previously been diagnosed with colon cancer in September 2022, underwent surgery and chemotherapy, and was given the all-clear in April 2023. The respondent accepted he was a disabled person because he had had cancer, but disputed that anyone at the respondent knew, or should have known, of that disability during the employment.

The tribunal found that the claimant’s work involved repeated errors and a lack of attention to detail, including omissions in subcontract quotations, a missed cost item on a Cumnock job, problems on a University of Glasgow tender, and a failure to cost work on a DWP contract. It accepted evidence that concerns were raised with him during employment, that he was told at the end of probation to pay attention to detail, that his bonus in June 2024 was only £1,000, and that by June/July 2024 the respondent had concluded he would not achieve the required standard. In or about August 2024 the respondent decided to look for a replacement, and the claimant was told on 24 October 2024 that the company had to let him go.

On knowledge, the tribunal preferred the respondent’s witnesses and found there was no actual knowledge of the claimant’s earlier cancer diagnosis and treatment. It found Mr Mycek had been told only that the claimant had had a “cancer scare”, and that in September 2024 the information given about GP visits, pain, constipation, and a scan was non-specific. Applying the authorities it cited, including Gallop v Newport City Council and Godfrey v Natwest Markets, the tribunal held the respondent did not know and could not reasonably have been expected to know that the claimant had a disability arising from cancer, including any suspected recurrence.

The direct discrimination claim failed because the claimant did not show that a hypothetical comparator without disability, but with the same abilities and the same pattern of performance errors, would have been treated more favourably. The tribunal also found that, even if there had been less favourable treatment, the reason for dismissal was the claimant’s ongoing errors and lack of improvement, not disability. It noted the decision to start recruitment was taken before the September medical events and that the timing of the dismissal, on the Friday before the replacement started in November 2024, was not suspicious.

The harassment complaint failed. The tribunal found that some alleged conduct did not occur, because the claimant’s work problems had been raised with him throughout his employment, and that the acts that did occur, including asking for his laptop and keys and asking him to leave the premises, were not related to disability because the respondent did not know, and could not reasonably have known, of the disability at the time. The section 15 and section 20 complaints were no longer pursued and were recorded as dismissed. No monetary award was made.