Ms M Hamilton v Fife Council: 4104090/2016 and 4106953/2017
| Judgment Date | 12 September 2019 |
| Citation | 4104090/2016 and 4106953/2017 |
| Subject Matter | Public Interest Disclosure |
| Published date | 18 October 2019 |
| Date | 12 September 2019 |
| Court | Employment Tribunal |
ETZ4(WR)
IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH
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Judgment of the Employment Tribunal in Conjoined Cases No: 4104090/2016 and
4106953/2017 Heard at Edinburgh on 18, 19, 25, 26, 27 and 28 September, 02, 03,
29 October and 01, 12 and 13 November 2018 and on 4 February and 5 February
2019 and Deliberations on 28 February, 1 March 2019, and 15 and 16 April 2019
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Employment Judge J G d’Inverno, QVRM, TD, VR, WS
Tribunal Member Ms P McColl
Tribunal Member Mr S Currie
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Ms M Hamilton Claimant
Represented by:-
Mr M Allison, Solicitor
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Fife Council Respondent
Represented by:-
Ms A Sneddon, Solicitor
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
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The unanimous Judgment of the Employment Tribunal is:-
(First) That the claimant’s complaint of discrimination in terms of section 21(2) of
the Equality Act 2010 succeeds in terms and in respect of:-
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(a) Issue (Second) paragraph 2.2(a) being the respondent’s failure in
applying to the claimant their policy LNCT 06, to take into account the
claimant’s health, including her Asperger’s Syndrome, in the decision
making process that resulted in her being selected as a member of
S/4104090/16 & S/4106953/17 Page 2
staff surplus to requirement and liable to transfer; and the respondent
shall pay to the claimant the sum of £6,250 as damages for hurt to
feelings in respect thereof, together with interest at the judicial rate of
8% per annum from 3 March 2016 until the date of this Judgment;
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(b) In terms of Issue (Second) paragraph 2.2(b)(i), (ii), (iii) and (iv) in
respect of the respondents’ convening of the claimant to and conduct
of the meeting of 26 April 2016; and the respondent shall pay to the
claimant the sum of £2,300 in damages for consequential hurt to
feelings in that regard, together with interest thereon at the judicial
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rate of 8% per annum from 26 April 2016 until the date of this
Judgment;
(Second) The claimant’s claims are otherwise dismissed.
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___________________
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Employment Judge
___________________
Date of Judgment
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Entered in Register and Copied to Parties ___________________
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REASONS
1.0 These cases, combined for the purposes of hearing, called at Edinburgh before a
Full Tribunal for a final hearing. The contingent issues of challenge to the
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S/4104090/16 & S/4106953/17 Page 3
Jurisdiction of the Tribunal by Reason of Time Bar, in respect of some or all of the
claimant’s complaints of harassment (section 26 EqA 2010) and of victimisation
(section 27), had been reserved for determination at the hearing.
1.1 The claimant, Mrs Hamilton, was present and represented by Mr Allison, Solicitor.
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The Respondent Council was represented by Mrs Sneddon, Solicitor instructed by
Mrs J Cameron, HR Service Manager.
2.0 The Issues
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Judge Macleod’s Order 4 of 26 February 2017, in terms of which he directed that, no
later than seven days prior to the commencement of the hearing, parties having first
adjusted the same between them should lodge with the Tribunal an Agreed List of
Issues requiring determination at hearing, had not been complied with. In the course of
Case Management Discussion, consequently conducted with parties at the outset of the
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hearing; and by reference to the Note of Output issued following the earlier held Case
Management Discussion which proceeded in Case Number 4104090/2016 only on
29 September 2016 but adjusting the same to take account of the subsequently raised
and now conjoined claims in Case Number 4106953/2017, the following were identified,
and confirmed by parties representatives and were recorded by the Tribunal, as the
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Issues, and reserved Preliminary Issues, requiring investigation and determination at
final hearing.
Direct Discrimination because of the Protected Characteristic of Disability
Section 13 of the Equality Act 2010
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2.1 (First) Whether, because of her protected characteristic of disability, the
respondents treated the claimant, whom it is accepted was at the material time a
person possessing the protected characteristic of disability by reason of her
Asperger’s Syndrome, less favourably than they would treat a hypothetical
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comparator who was not so disabled, by:-
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