Ms D McBride v The State Hospitals Board for Scotland — 2026

Ms McBride alleged direct discrimination, harassment and victimisation under the Equality Act 2010, relying on perceived disability arising from hearing loss and, in the alternative, age. The tribunal found that by September 2023 the respondent, acting through Ms Alexandra McLean, perceived the claimant to have a disability within the Act. It found a perceived physical impairment affecting relevant day-to-day activities, treated the condition as progressive for the purposes of paragraph 8 of Schedule 1, and noted that the hearing impairment had been present for more than 12 months. There was no evidence supporting age discrimination.

For direct discrimination, the tribunal accepted that removing the claimant from the Patient Learning Centre in January 2024 and making her return to her substantive role conditional on wearing hearing aids amounted to less favourable treatment compared with a person not perceived to have hearing loss. Applying Chief Constable of Norfolk v Coffey, however, it found that the decisions were not significantly influenced by stereotypical assumptions about hearing loss. Ms McLean and Ms Jacqueline Garrity acted on the audiological evaluations, reports from colleagues, occupational health information, the offer of hearing aids and the health and safety requirements of the high-security environment. The tribunal described the available information as imperfect and found, with hindsight, that excluding the claimant was a mistake, but it found that the managers acted in good faith on the information available to them. Other allegations either did not amount to less favourable treatment or were not because of perceived disability.

The harassment allegations included requests for hearing tests and occupational health involvement, restrictions imposed by risk assessments, removal from the Patient Learning Centre, and statements about wearing hearing aids, redeployment and capability. The tribunal found that the relevant managers did not act with the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It considered the claimant's perception, the surrounding circumstances and whether it was reasonable for the conduct to have the prohibited effect. Although it accepted that some measures were perceived by the claimant as humiliating, degrading or intimidating, it found that the conduct did not have the prohibited effect in the circumstances. It also found that the October 2024 questioning about work was unrelated to hearing loss and that the alleged statement that the claimant had been diagnosed as profoundly deaf was not proved.

The tribunal found that the lack of preparation for the claimant's return on 22 April 2025 resulted from a breakdown in communication between Ms McLean and Ms Garrity, not from perceived disability or a protected act. Mr Craig Smith asked the claimant to leave the Skye Centre on 29 April 2025 because he was applying the January 2024 risk assessment. The delay until 12 May 2025 in conducting the functional risk assessment arose because it was bespoke, required consultation, involved an adviser working two days a week and had to accommodate the claimant's phased return. Following that assessment, the claimant resumed her duties in the Skye Centre without hearing aids on 18 or 19 May 2025 under the May 2025 risk assessment.