‘Council did not present medical evidence to support its case, which contributed to the EAT’s rejection of its arguments’
The most recent update on this this long-running, shameful saga exposes yet another blunder by the Council:
It states: This case also underscores the importance of properly engaging with remedy hearings. The employer (WDC) did not present medical evidence to support its case, which contributed to the EAT’s rejection of its arguments.”
WDC requested for an extension of time to have Mr Gourlay medically examined and he did not object to this. An extension was granted with the case being further delayed which mean an escalation of even more costs than have already been run up being incurred.
For reasons unknown WDC never did have Gourlay examined – all the while, since 2015 Gourlay was amenable to being examined.
West Dunbartonshire Council Loses Appeal Over Discrimination Case
The Employment Appeal Tribunal (EAT) has sided with Mr. Brian Gourlay in his appeal against a remedy judgment concerning his claims of disability discrimination and victimisation against West Dunbartonshire Council. The EAT found that the initial tribunal had erred in law by reducing the compensation awarded to Mr. Gourlay for lost earnings and pension benefits.
Background to the Case
Mr. Gourlay, pictured left, formerly a Corporate Health and Safety Officer, was dismissed by the council in 2015. He subsequently brought claims of unfair dismissal, disability discrimination, and victimisation. The tribunal upheld his claims of unfair dismissal, victimisation, and disability discrimination related to the council’s failure to make reasonable adjustments for his multiple sclerosis.
A subsequent remedy hearing determined that the council’s discriminatory conduct had caused Mr. Gourlay to develop a severe depressive episode, rendering him permanently unfit for work. The tribunal initially calculated wage and pension losses but reduced the figure by 80%, believing Mr Gourlay might have sought early retirement anyway. This decision was challenged by Mr. Gourlay.
EAT’s Decision
The EAT, led by Lord Fairley, found that the tribunal had made several errors in reducing the compensation. The key error was failing to properly consider the impact of the council’s discriminatory actions on Mr. Gourlay’s ability to find alternative employment. The EAT stated that the tribunal should have considered whether a lawful, non-discriminatory dismissal would have had the same debilitating effect on Mr. Gourlay’s mental health.
The EAT also rejected the council’s cross-appeal, which argued that compensation should cease after March 31, 2017, a date by which the tribunal believed Mr. Gourlay’s employment might have ended lawfully. The EAT found this argument based on the same error of law as the tribunal’s initial decision.
Remittal for Reconsideration
As a result of the successful appeal, the EAT has remitted the case to a new employment tribunal for a fresh assessment of compensation for past and future wage loss and pension loss. The new tribunal will be tasked with determining the appropriate award based on the findings of fact from the original hearing, as well as any updated information regarding Mr. Gourlay’s current financial situation.
Read the entire judgement here: Mr Brian Gourlay v. West Dunbartonshire Council [2025] EAT 29