Case 8000361/2023 · Employment Tribunal
D McAllister and D McFarlane Mr Dale Higgins v The Scottish Ministers — 2023
- Case reference
- 8000361/2023
- Decision date
- 12 April 2023
- Jurisdiction
- Scotland
- Judge
- Employment Judge L Wiseman Members
- Venue
- Glasgow
- Panel members
- D McAllister, D McFarlane
Parties
2 namedClaimant
D McAllister and D McFarlane Mr Dale Higgins
Respondent
Key findings
Tribunal's reasoningThe claimant was employed as a Client Advisor on a nine-month probationary period and was accepted by the respondent to be disabled by reason of HIV, anxiety and depression. He brought complaints of disability discrimination after a period of sickness absence and after submitting a grievance about a colleague's WhatsApp message concerning an HIV-positive benefits applicant.
On the direct discrimination complaint, the tribunal found that the alleged treatment had not occurred. The claimant accepted he had not been asked to change the day he attended the office; this was an assumption about what might happen if he returned to office working. The tribunal therefore dismissed the section 13 complaint.
On the discrimination arising from disability complaint, the respondent accepted that dismissal was unfavourable treatment because of disability-related absence. The tribunal accepted the respondent's aims of maintaining regular and effective service, operational efficiency, and continued delivery of services to customers. It found the claimant had been absent for 148 days during probation, there was no evidence of a likely return to work in the foreseeable future, and extending probation would not have achieved the respondent's aims. The section 15 complaint was dismissed.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Direct discrimination under section 13 Equality Act. The tribunal found the alleged less favourable treatment did not occur because the claimant had not been asked to change the day he attended the office. | Dismissed | Disability | — |
| Disability discrimination | Discrimination arising from disability under section 15 Equality Act. The respondent accepted dismissal was unfavourable treatment arising from disability-related absence, but the tribunal found dismissal was a proportionate means of achieving legitimate aims. | Dismissed | Disability | — |
| Whistleblowing | The claimant withdrew the complaint regarding dismissal or detriment for having made a protected disclosure following a case management hearing; it was not determined at the final hearing. | Withdrawn | — | — |
Legal tests applied
4 references- section 13 Equality Act
- section 15 Equality Act
- section 6 Equality Act
- proportionate means of achieving a legitimate aim
Official outcome judgment PDF
Gov.uk primary recordThe 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.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
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