Case 8000365/2023 · Employment Tribunal
ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000365/2023 Hearing Held at Edinburgh on 9, and April 2024 by Cloud Video Platform Employment Judge: M A Macleod Tribunal Member: S Cardownie Tribunal Member: J Chalmers J Henderson
The claimant, who had fibromyalgia, had been absent from work due to ill health from 16 October 2018 until her employment was terminated on 24 February 2023. The tribunal found that occupational health evidence and the claimant's own statements did not identify any foreseeable return to work date or any support, adjustment, phased return or redeployment that would enable a return in the foreseeable future.
On direct disability discrimination, the tribunal found that the claimant was dismissed because she had been absent for more than four years without any prospect of return, not because she suffered from fibromyalgia. It found that a non-disabled employee in the same circumstances would not have been treated more favourably, and that the respondent had not taken a rigid position that any phased return could last only four weeks.
On indirect disability discrimination, the tribunal accepted that the respondent had and applied a PCP requiring employees absent through sickness to keep in touch and attend meetings and consultations. It preferred the respondent's evidence that contact was reduced when the claimant requested it, found no substantial disadvantage from the PCP, and in any event found the PCP to be a proportionate means of achieving the legitimate aim of maintaining contact, engagement, welfare information and discussion about return to work. Both claims failed and no remedy was awarded.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Direct disability discrimination under section 13 Equality Act 2010. The tribunal found the dismissal was not less favourable treatment because of disability. | Dismissed | Disability | — |
| Disability discrimination | Indirect disability discrimination under section 19 Equality Act 2010. The tribunal considered the PCP of requiring employees absent from work to keep in touch and attend meetings and consultations during absence. | Dismissed | Disability | — |
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