The Scottish Fire and Rescue Service (SFRS) forced staff who had to shield during the Covid-19 pandemic to use holidays and lieu time while they were off, a tribunal has heard.
The move – which was completely at odds with Scottish Government advice that shielders should not lose out on “future entitlements like holiday and accrued time” – has resulted in a finding of disability discrimination against the fire service.
An employment tribunal found that a group of fire fighters suffered “unfavourable treatment” as a result of their health conditions.
However, despite the ruling, the workers have been awarded no compensation and currently do not stand to get any of their time back.
The Herald understands that the Fire Brigades Union (FBU), who raised the action on behalf of members, is asking the tribunal to reconsider the judgment in the hope that a recommendation can be made for holidays and TOIL (time off in lieu) to be reinstated.
SFRS said it is considering the tribunal’s decision, adding that the Covid-19 pandemic presented an “unprecedented situation” for the service.
Jillian Merchant, of Thompsons Solicitors, who represented the claimants, said the case is one of the first Covid-19 discrimination claims to reach the courts.
“We are delighted to have secured a declaration of discrimination in this case,” she said. “Disabled workers should not be punished for following Scottish Government guidance to shield for their own protection.
“SFRS signed up to the Scottish Government’s Fair Work Statement agreeing that no worker would suffer a detriment for following public health guidance.
“The employment tribunal has now found that these workers not only suffered a detriment, but were discriminated against.
“Public authorities should not be signing up to Fair Work Statements agreed between the trades unions and the Scottish Government because it looks good, if they have no intention of implementing them in practice.”
The FBU added that while it was pleased with the discrimination ruling, it was disappointed that SFRS was facing no sanctions for their actions.
Scottish secretary Denise Christie said: “In principle we are delighted with this result. It is another example of a trade union fighting and winning for its members.
“Covid is like any other major burden that falls on society: a disproportionate amount of it often ends up being put on people who are already discriminated against, like women or disabled people.
“However we cannot ignore the fact that despite this judgment the tribunal has seen fit to impose no sanction at all on SFRS. Nor has the Tribunal seen fit to order the employer to reinstate the annual leave and TOIL wrongly removed from our members.
“This is clearly unjust and we will challenge it with every legal tool at our disposal.”
The tribunal heard that around 150 SFRS workers who could not perform their roles from home were asked to shield during lockdown.
A judgment on the case states: “All staff who required to shield who could not work from home required to use their accrued annual leave and TOIL before being paid special leave to ensure their time spent at home (and not working) was paid.”
A group of eight employees raised claims for disability discrimination, with employment judge David Hoey ruling that there was “unfavourable treatment (removal of choide and flexibility with regard to TOIL and accrued leave) because of something arising in consequence of a disability”.
However, the judge added that there was an “absence of evidence” showing what was lost by the claimants and it was therefore not “just or equitable” to award any compensation.
A further group who were forced to use annual leave and TOIL to cover time off for caring responsibilities tried to claim that this was sex discrimination, however this was rejected by the tribunal.
SFRS director of people and organisational development, Liz Barnes, said: “The Covid-19 pandemic was an unprecedented situation and presented unique challenges to SFRS as an emergency responder.
“We worked, and continue to work, wherever possible to support our staff and find an appropriate balance with our duty to maintain the level of service required to keep people safe.”