A disabled Scottish government employee who was not given the equipment necessary for him to work has won a direct discrimination case at an employment tribunal.
Mr Blair, who worked as a team leader within the social care division of the Scottish government on a fixed-term contract from November 2020 to October 2022, required several auxiliary aids and reasonable adjustments to enable him to work effectively with his health conditions.
He has spondylitis, a degenerative disease of the spinal cord; spinal arthritis from injuries sustained when he was hit by a van while working for Fife Police; Ehlers-Danlos syndrome which causes overly-flexible joints; hypermobility; fibromyalgia; and dyslexia which causes him visual disturbances. He uses a wheelchair.
Reasonable adjustments
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He received several auxiliary aids from his previous employer, including an ergonomic chair, keyboard, mouse, large monitor, height-adjustable sit-stand desk that his wheelchair could fit under, and a laptop with several assistive programs.
Before beginning his role at the Scottish government, he spoke to Mr Dorrian, head of the team that provided workplace adjustments to new employees, and it was agreed that he would work from home at first as there was still uncertainty around when the office would reopen after the Covid lockdown.
Dorrian arranged for some equipment to be delivered to Blair’s home. However, when it arrived Blair found the laptop did not have a power cable, the monitor was “problematic”, the keyboard and mouse were not compatible with the IT system he would be using, and the mobile phone he was given was too small for him to use.
Sickness absence
In May 2021, Blair became unwell and told his employer he would be absent for a few weeks due to an infection which, because of his health conditions, would take longer for him to recover from. At this stage he felt the organisation had failed to support him and provide him with suitable adjustments.
When he returned to work he was invited to an attendance probation meeting as his period of sickness absence had triggered the organisation’s absence during probation procedure.
At this meeting, Blair raised concerns about having had no monthly conversations about his work, lack of support, lack of team communication, and no conversations on workplace adjustments or implementing the recommendations of an occupational health report that had been prepared before he started his role.
An occupational health report later suggested that his absence was a direct consequence of his disabilities stating: “It is my clinical opinion that if he had been given the appropriate support and adjustments, his absence may not have occurred. Symptoms are likely to have been triggered by additional stress and an impact on his mental health and wellbeing.”
The Scottish government later agreed to amend his sickness absence trigger point.
Unsuitable equipment
At the absence meeting, Blair said that no physical adjustments had been made to enable him to work in the office. The organisation had intended for him to work in a room on the ground floor of its offices, but the room needed to be fitted with power points as it had previously been used as storage. The building did not have buttons that he could press to open the doors, which made entry difficult with his wheelchair.
In October, Blair travelled to the office after being informed the room was now ready for him. However, when he arrived no automatic doors had been installed and the room had not been set up with the equipment he needed.
Dorrian responded to Blair’s concerns by stating: “The lesson is well and truly learned for my team to go and physically
check everything before passing information on.”
In November, he was given his final probation performance appraisal which highlighted concerns about his performance and working relations. It was recommended that his probation be extended.
Following the report, Blair went on sick leave due to anxiety and depression and did not return to work before his contract came to an end.
He submitted a grievance in relation to the extension of his probationary period, arguing that it had been extended without good cause and that the decision had been directly and indirectly linked to his disability. He said that the original probationary period would have been satisfactorily completed had it not been for the attendance procedure earlier that year, and since then reasonable adjustments had continued to be delayed. He said he was under the impression that managers wanted to dismiss him by extending probation and “perpetuating a hostile work environment”.
His greivance was only partially upheld, and Blair launched a further appeal in August 2022. However, it was confirmed that his employment would end in October 2022, the end of the fixed-term contract. He appealed against his dismissal, but this complaint was also rejected.
His pay had been reduced to half from April 2022, and later to nil.
Tribunal’s ruling
Blair told the tribunal that he had been treated “appallingly” by the Scottish government.
In its judgment in Mr J Blair v The Scottish Ministers, the employment tribunal panel found the Scottish government had directly discriminated against the claimant and had failed in its duty to make reasonable adjustments.
Employment judge Murdo Macleod said Blair’s continued absence, which contributed to his dismissal, arose because of the failure to make reasonable adjustments.
The judge said: “The claimant’s position was simply that had they been accorded the reasonable adjustments which should have been put in place for them, they would not have had their employment terminated at that time… the respondent was ‘timed out’ due to the significant delays in the process, which we understand to mean that with the fixed term coming to an end, the respondent was unable or unwilling to take any further action with regard to the claimant.
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“Given that the claimant was anxious and keen to return to work, but found themselves unable to do so in the absence of the reasonable adjustments which should have been put in place, we consider that the claimant’s dismissal amounted to an act of direct discrimination, that is, that the claimant was treated less favourably as a disabled person than a non-disabled person in these circumstances would have been.”
A further hearing will be scheduled to determine whether Blair is owed compensation.
