A police constable has been awarded £43,000 after she was found to have been victimised by her boss over her inability to work in cold weather.
Glasgow employment tribunal found that PC Gemmell was “ambushed” in a “return-to-work interview” at Police Scotland that lasted more than two hours.
An accident in 2014 left Gemmell with neuralgia, a nerve condition which the tribunal heard was aggravated by cold weather. She was removed from frontline policing in 2016 and given a role in the service delivery unit (SDU), a team that handles leave requests and organises resources for events such as football matches and protests.
The SDU was originally based at Govan police station in Glasgow, but moved to Stewart Street in 2021. Gemmell remained at Govan because the effects of her disability were exacerbated by travelling distances by car. The SDU’s work involved juggling resources to meet competing demands and operated 24 hours a day. Inspector Gow was appointed to run the unit in early 2022.
In April 2022, Gemmell felt she needed support managing her workload. She contacted Sergeant McBlane to ask for help, who told her to “just do her job”.
From 7 September to 14 October 2022, Gemmell was absent from work due to stress. While on leave, she messaged managers about finding a new office at Govan because the department with which she shared a room was relocating, and she would be left alone in a large room.
McBlane replied that there was no problem with Gemmell remaining at Govan, but if having company was an issue, then would she consider moving to Stewart Street or consider a move to another department, such as crime management?
The claimant also suggested she needed an occupational health referral, so she could explain why she needed adjustments. McBlane explained that she would need an attendance support meeting (ASM) first and that she should arrange this with another sergeant, as he was going on annual leave.
The tribunal heard no evidence that Gemmell ever contacted another sergeant to arrange an ASM and no OH referral was made at this time.
On the morning of 16 December 2022, Gemmell emailed about cold weather, describing herself as being in “high pain”. She made reference to adjustments on her HR record regarding attendance in inclement weather.
She was not due to start her shift until 2pm and stated that she was going to struggle, saying she was not sure what to do. She also stated that she needed another plan because she was forcing herself into work when she is in pain.
McBlane replied, informing her he had spoken to Gow and that they could have a discussion “next week” about how to move forward. He said he hoped she could make it in but if not, she should follow the normal sickness absence reporting process.
The claimant replied saying she had no choice but to phone in sick. She also made reference to having been through this before with other sergeants and that the Scottish Police Federation had previously issued a “formal warning” to Police Scotland about her adjustments being mismanaged.
Gemmell reported in sick that day and, because of her rostered shifts, did not return to work until 21 December. During this time, she informed her Police Federation rep, Ian Florence, about issues with her supervisors in relation to her disability and adjustments.
Florence spoke to Gow to suggest arranging a “disability passport” for Gemmel to avoid her having to explain her adjustments each time she had a new manager.
On 21 December 2022, Gow and McBlane attended Govan to meet Gemmell for a return-to-work interview, but neither she nor her rep had been informed. Return-to-work interviews involved completing a pro forma document and did not tend to take very long.
It began with Gow saying he was annoyed that she had approached the Police Federation without warning him. He asserted that he had never managed anyone like her and was “raging” that Florence had said she did not feel supported. Gow said she would get her disability passport and that he agreed it needed doing, as well as an occupational health referral.
Gemmell explained she had been unable to attend the office on 16 December due to her disability and so had phoned in sick as instructed. Gow asked when something similar had last occurred. Gemmell said her adjustments were put in place in 2019. She explained that she takes a lot of the winter off because of the weather and that it had not happened again or she could not remember it happening. He asked what was meant by “inclement weather” and she replied it meant snow or ice.
Gow then stated that he wanted to move her to crime management. She responded that she was happy doing her job and that she loved it. Gow then stated that colleagues did not like her, and she had an adverse effect on them. He said supervisors found her a problem to manage, people could not work with her, and no one had a nice word to say about her. Gow said he was going to arrange a further meeting and get HR and the “supers” to attend.
She was asked whether she wanted to go home, and Gemmell replied that she was going off sick. After the meeting, the claimant went into the toilets in tears and contacted Florence. Gemmell went off sick that day and did not return. She was on full pay until February 2024. The claimant’s pay was reinstated but, in total, she was without pay for nearly a year. She raised a grievance about the events giving rise to this case. This was heard by Police Scotland but was not upheld.
Gemmell claimed direct disability discrimination for Police Scotland’s intention to move her from Govan, and for being shouted at by McBlane in April 2022. She also claimed direct discrimination and victimisation for being denied an OH referral in October 2022; for being rostered off sick on 16 December; and for the conduct of the “return-to-work” meeting.
However, the judge dismissed her direct discrimination claims, saying there was “no evidence at all” that someone without Gemmell’s disability would have been treated any differently.
For the victimisation claims, the tribunal had “no hesitation in accepting” that Gemmell’s contacting the Police Federation was a protected act. It dismissed the claims relating to the OH referral and Gemmell being rostered off sick, because these detriments happened before that contact took place.
The tribunal concluded that the manner in which the meeting was conducted amounted to a detriment because there was no advance warning; because Gow had “always intended” for it to be more than just a return to work meeting; because it amounted to an “ambush” and Gemmell had no opportunity to prepare; and because she was deprived of an opportunity to have Police Federation representation.
The judgment said that Gemmell remains employed by Police Scotland, and the panel were satisfied that the loss of wages caused by her absence from work was because of the victimisation. It awarded £28,100 in lost wages, plus interest of £2,910. The tribunal also awarded £10,000 for injury to feelings, plus interest of £2,070. The total award was £43,100.
Employment Judge O’Donnell said: “It is difficult not to see a degree of vindictiveness in the comments made to the claimant by [Gow] about how others view her, and the tribunal does consider that there was an element of [Gow] seeking to put the claimant in her place by raising these issues in the very blunt way that he did.”
