Claimant v South Lanarkshire Council
Outcome
Individual claims
The tribunal found that the respondent, from 9 October 2022, ought reasonably to have known the claimant was disabled (anxiety and depression). After the third Occupational Health Report (26 April 2023) stated the claimant was medically fit for home working only and that attending the office may exacerbate his anxiety and chronic mood disorder, the respondent failed to adjust the PCP of requiring office attendance one day per week. The tribunal held this failure was unreasonable, especially given the medical advice of potential harm, and that working from home was a reasonable adjustment the respondent should have made.
The tribunal found that while some conduct was unwanted and related to disability, it did not meet the statutory threshold. The claimant's perception that the conduct violated his dignity or created a hostile environment was not considered reasonable in the circumstances. The respondent was seeking to manage the situation, and the claimant's own conduct contributed to difficulties. The tribunal concluded there was no breach of section 26.
The tribunal found that the letter of 9 May 2023, which withdrew a temporary offer of one-hour weekly meetings in the office and instead required full office attendance, was victimisation. The tribunal held that the withdrawal of the temporary arrangement, shortly after the claimant's first tribunal claim (a protected act) had resulted in a preliminary hearing being scheduled instead of a full hearing, raised a prima facie case of victimisation. The respondent failed to discharge the burden of proof by not calling the decision-maker (Mr Wilson) or personnel staff to explain the decision. The tribunal found the decision was influenced by the fact the tribunal hearing was postponed, which followed from the claim being presented.
Facts
The claimant, a Finance Assistant with 25 years' service at South Lanarkshire Council, suffered from anxiety, depression, and a heart condition (hypertrophic cardiomyopathy). During Covid-19, he worked from home. From April 2022, the respondent required all staff to attend the office one day per week. The claimant raised concerns about his health and anxiety about catching Covid-19, requesting continued home working as a reasonable adjustment. He lodged a grievance in September 2022 alleging disability discrimination, which was rejected. Despite an Occupational Health report in April 2023 stating he was fit for home working only and warning that office attendance may exacerbate his anxiety and mood disorder, the respondent insisted on office attendance. On 9 May 2023, after the claimant's tribunal claim resulted in a hearing postponement, the respondent withdrew a temporary offer of one-hour weekly meetings and required full office attendance, threatening disciplinary action if he did not comply. The claimant went off sick and remained absent.
Decision
The tribunal found the respondent ought reasonably to have known from 9 October 2022 that the claimant was disabled. It held the respondent failed in its duty to make reasonable adjustments by requiring office attendance after receiving the April 2023 Occupational Health report advising against it. The tribunal also found the letter of 9 May 2023 withdrawing the temporary arrangement was victimisation, as the respondent failed to prove it was not connected to the claimant's first tribunal claim. The harassment claim failed. The tribunal awarded £13,000 injury to feelings (lower-middle Vento band) plus interest, and limited financial losses to two months (one third of claimed losses), reflecting its finding that the claimant would likely have been dismissed for misconduct within two months had adjustments been made, due to inappropriate emails, behaviour at a team meeting, and a whistleblowing complaint the tribunal considered not made in good faith. Total award: £16,376.82.
Practical note
An employer cannot rely on its failure to properly investigate disability status to avoid the duty to make reasonable adjustments; where Occupational Health advises that an employee is not fit to attend the workplace and that doing so risks exacerbating a mental health condition, requiring attendance is unlikely to be reasonable, and an employer must either make the adjustment, find alternative arrangements, or consider capability procedures — it cannot simply insist on compliance.
Award breakdown
Vento band: middle
Adjustments
Tribunal awarded only one third of financial losses on the basis that, had the respondent made reasonable adjustments, the claimant would likely have been dismissed for gross misconduct within two months due to inappropriate emails, behaviour at a team meeting, and a purported whistleblowing complaint the tribunal considered not made in good faith. The tribunal found it essentially certain there would have been a fair and lawful dismissal in such circumstances.
Legal authorities cited
Statutes
Case details
- Case number
- 4106437/2023
- Decision date
- 28 February 2024
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Name
- South Lanarkshire Council
- Sector
- local government
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Finance Assistant
- Service
- 26 years
Claimant representation
- Represented
- Yes
- Rep type
- solicitor