Claimant v East Lothian Council
Outcome
Individual claims
The Cowen tribunal found in March 2020 that two acts by JS on 24 February and 1 March 2016 constituted harassment related to disability. The respondent was ordered to pay £5,000 including interest for these breaches in March 2024.
The Cowen tribunal found the respondent failed to remove JS as the claimant's manager between October and November 2016. This tribunal awarded £15,250 compensation plus £10,178 interest for this failure, finding it caused injury to feelings (£1,200) and exacerbated psychiatric injury (£14,050) for a 4-month period.
The complaint regarding failure to remove or extend the four-week time limit in the redeployment policy was withdrawn by the claimant during this hearing.
The tribunal found the dismissal was unfavourable treatment because of something (absence from work) arising from disability. However, it was objectively justified as a proportionate means of achieving legitimate aims: ensuring effective service to vulnerable adults, minimising impact on the team, and demonstrating value for money. The claimant refused to participate in redeployment and there was no prospect of return to work.
The tribunal found the principal reason for dismissal was capability (17 months absence due to ill health with no prospect of return). The respondent acted in accordance with its attendance policy, obtained OH advice, offered redeployment opportunities three times (which the claimant refused), and acted within the band of reasonable responses. The dismissal was therefore fair.
Facts
The claimant worked for East Lothian Council for 16 years as an Employability Support Worker. She was disabled by reason of brain aneurysm, depression and anxiety. Following acts of harassment by her line manager JS in February/March 2016 and the commencement of a disciplinary investigation, she went on sick leave in May 2016 certified with work-related stress. Her son died in October 2016. The council failed to explicitly and permanently remove JS as her manager between October-November 2016 (a reasonable adjustment previously found by the Cowen tribunal). The claimant refused to participate in the redeployment process offered three times, wanting it to be without time limit. After 17 months absence with no prospect of return, she was dismissed for capability in October 2017.
Decision
This tribunal dealt with remedy for the earlier finding of failure to make reasonable adjustments and re-heard the discrimination arising from disability and unfair dismissal claims. The tribunal awarded £15,250 plus £10,178 interest for the reasonable adjustment failure (£1,200 injury to feelings, £14,050 psychiatric injury for 4-month exacerbation). The unfair dismissal and discrimination arising from disability claims failed: the dismissal was objectively justified and fair because the claimant had been absent 17 months with no return prospect, refused redeployment, and the employer acted within the band of reasonable responses.
Practical note
Even where an employer has previously failed to make reasonable adjustments, a subsequent capability dismissal after prolonged absence can still be both objectively justified under s.15 EqA and procedurally fair under s.98 ERA if the adjustment failure did not cause the ongoing absence and the employee refuses reasonable redeployment opportunities.
Award breakdown
Vento band: lower
Award equivalent: 41.2 weeks' gross pay
Legal authorities cited
Statutes
Case details
- Case number
- 4102891/2018
- Decision date
- 1 April 2025
- Hearing type
- full merits
- Hearing days
- 7
- Classification
- contested
Respondent
- Name
- East Lothian Council
- Sector
- local government
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Employability Support Worker
- Salary band
- £15,000–£20,000
- Service
- 16 years
Claimant representation
- Represented
- Yes
- Rep type
- solicitor