Employment tribunal finds woman suffering from anxiety unfairly dismissed from Rape Crisis Scotland

The claimant, Kathleen Graham, argued that she had been discriminated against because of her disability and sought compensation for unfair dismissal plus a payment in respect of injury to feelings. It was further argued that there were procedural defects in the proceedings surrounding her dismissal, which were prejudiced against her.

The case was heard by Employment Judge A Jones, sitting with two other tribunal members. The claimant represented herself, while the respondent was represented by G McQueen, solicitor.

Confidential information

The claimant had been employed by the respondent from 7 July 2007. In 2016, she was appointed to an additional role related to a new project called the Scottish Women’s Resource Centre, which then progressed to a full-time role with the respondent as an advocacy worker. In 2017, the claimant began attending a ‘Coping with Anxiety’ course after being referred by her GP. She made arrangements with her manager, KM, to leave work early in order to attend this course, and later began taking anti-depressants.

The claimant’s relationship with KM later degraded, and in a risk assessment report on the project in 2019 KM highlighted that an unnamed advocacy worker was a “potential HR risk”. Following publication of the report, the claimant emailed Sandy Brindley, the respondent’s chief executive, to complain that the assessment contained confidential information about her health that could be accessed by any member of staff. After a meeting between the two, the claimant was given a new line manager and offered mediation, with formal grievance proceedings ultimately leading to no action being taken.

In November 2019, after the other advocacy workers on the project raised concerns about the claimant’s behaviour to their line manager, Ms Brindley telephoned the claimant to advise her that she was being suspended immediately to enable an investigation into the complaints. A disciplinary hearing was arranged for 5 February 2020 despite the views of the claimant’s trade union representative that she was not fit to attend such a hearing, which was attended by Ms Brindley ostensibly in a note-taking capacity despite a lack of formal training.

The claimant was dismissed by letter dated 11 February 2020. An appeal, which was again attended by Ms Brindley as a note-taker, was dismissed on 12 March. In her application to the employment tribunal, the claimant submitted that the respondent had actual or constructive knowledge of her disability and had not acted reasonably in dismissing her in terms of section 98 of the Employment Rights Act 1996.

Invisible hand

In its decision, the Tribunal expressed concerns at the extensive role played by Ms Brindley throughout proceedings, commenting: “While the Tribunal was mindful that the respondent was a small mainly voluntary organisation, it seemed extraordinary that the chief executive of the organisation would make a recommendation that an employee be suspended, take part in a grievance hearing concerning that employee and then be present at the disciplinary and appeal hearings concerning that same employee where the employee was suggesting that the grievance and disciplinary proceedings ought to have been combined.”

It continued: “Ms Brindley appeared unable or unwilling to understand that her presence throughout both the grievance and disciplinary processes could have a bearing on the extent to which these were conducted in an impartial manner. It was clear to the Tribunal that Ms Brindley operated an invisible hand throughout both processes and her presence was not neutral.”

Assessing the respondent’s awareness of the claimant’s disability, the Tribunal said: “The respondent appeared to be of the view that in the absence of a formal diagnosis, then they were not obliged to consider whether there were any steps they ought to take in terms of the claimant’s condition. While such a position is of course wrong in law, the Tribunal was extremely surprised that an organisation such as the respondent, whose services were focussed on supporting women who had experienced trauma would adopt such a position.”

Turning to whether the claimant had been discriminated against in being labelled an HR risk, it went on to say: “It was clear that the reference to the claimant was negative, she was seen as a risk to the project in which she was employed. That risk was both in relation to her being ‘challenging’ and that she had been absent with ‘work related stress’. It was not clear to the Tribunal why it was necessary to make reference to the reason for the claimant’s absence from work, unless the nature of that absence was likely to impact on the delivery of the project. Anyone reading the document would reasonably form the view that the claimant was a risk.”

The Tribunal concluded: “The disciplinary hearing was not fair. Further, the presence of Ms Brindley at every stage of the proceedings reinforced the Tribunal’s view that the dismissal of the claimant was predetermined. Ms Brindley was aware of the grievance raised by the claimant and the outcome and recommendations which had been made. However, she did not raise this with the disciplinary hearing as an alternative potential outcome, which the Tribunal found very surprising.”

The respondent was therefore ordered to pay the claimant a basic award of £7,087.50, with compensation for unfair dismissal of £28,124 subject to recoupment. The Tribunal further awarded the claimant £15,000 for injury to feelings.