Mr M Shaw v The Chief Constable of the Police Service of Scotland: 8000444/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000444/2024Venue GlasgowHearing 4, 5, 6, 7 and 26 November 2024 Members’ Meeting on 9 and 19 December 2024
Between
Mr M ShawClaimantThe Chief Constable of the Police ServiceRespondent
Before
Employment Judge M SutherlandDate 23 December 2024
JUDGMENT
The unanimous judgment of the Tribunal is that the complaints of failure to make reasonable adjustments and indirect discrimination do not succeed and are accordingly dismissed.
REASONS
[1]The final hearing was held in person. The claimant appeared on his own behalf. The respondent had professional representation.[2]The claimant made complaints of failure to make reasonable adjustments, and indirect disability discrimination which were denied by the respondent. The complaints pertain to his application for permanent promotion from the rank of Sergeant to that of Inspector.[3]The respondent accepted that the claimant was disabled by reason of haemochromatosis, Hashimoto’s autoimmune condition and complex PTSD at the relevant time and that they knew or ought reasonably to have known this.[4]The claimant gave evidence on his behalf and called Lee Page (Chief Inspector) and Iain Jeffrey (Sergeant and voluntary Chair of DACA). The respondent called the following witnesses: Lindsay McGrath (Promotions Manager) and Paul Rollo (Detective Superintendent with responsibility for promotions).[5]Parties lodged a joint bundle to which supplementary documents were added during the hearing.[6]The parties made written and oral submissions.[7]Adjustments were made to the process in light of the claimant’s disability and his status as a litigant in person including: giving breaks as required; allowing his evidence in chief to be given by witness statement; allowing time to prepare for cross examination; providing assistance with reference to the list of issues and the claimant’s prepared questions; arranging for advance notice of the respondent’s written submissions.[8]The following initials are used in this judgment – Initials Name Title LM Lindsay McGrath National Promotions Team Manager LP Lee Page Chief Inspector PR Paul Rollo Superintendent (Recruitment and Selection)
List of Issues
[9]The list of issues agreed by the parties was as follows – Indirect disability discrimination – s.19 Equality Act 2010 (“EqA”)a. In respect of the Sergeant to Inspector Assessment Centre, did the respondent apply the following provision, criterion or practice ("PCP")? i. Of requiring candidates to undertake a large amount of preparatory work outside working hours; ii. Of requiring candidates to process and respond to questions upon three prepared scenarios in a timed environment; iii. Of utilising an assessment where one third focuses on a major incident;b. If so, did the PCP put, or would put, persons who shares the claimant’s disability at the following particular disadvantage in comparison with persons who do not share it? i. Of being unable to undertake this preparatory work without causing sickness and absence; ii. Of being unable to process and respond adequately in the timescale causing them to fail selection; iii. Of being unable to respond adequately because major incidents are managed by Police Incident Officers, disabled candidates cannot undertake front line policing and are not trained as PIOs and causing them to fail selection;c. If so, did the PCP put, or would put, the claimant at that particular disadvantage?d. If so, was the PCP a proportionate means of achieving a legitimate aim of selecting the best suitable candidates? Failure to make reasonable adjustments - ss.20 & 21 Equality Act 2010 (“EqA”)e. In respect of the Sergeant to Inspector Assessment Centre, did the respondent apply the following provision, criterion or practice ("PCP")? i. Of requiring candidates to undertake a large amount of preparatory work outside working hours; ii. Of requiring candidates to process and respond to questions upon three prepared scenarios in a timed environment; iii. Of utilising an assessment where one third focuses on a major incident;f. If so, did the PCP, place the claimant at the following substantial disadvantage in comparison with persons who are not disabled? i. Of being unable to undertake this preparatory work without causing sickness and absence; ii. Of being unable to process and respond adequately in the timescale causing him to fail selection; iii. Of being unable to respond adequately because major incidents are managed by Police Incident Officers, he cannot undertake front line policing and is not trained as a PIO and causing him to fail selection;g. If so, did the respondent know, or ought the respondent reasonably to have known, that the claimant was likely to be placed at a substantial disadvantage compared with persons who were not disabled?h. If so, did the respondent fail to take the following steps to avoid that disadvantage suffered by the claimant?i. Instead of attending the assessment centre allowing him to be assessed in post for 1 year; or alternatively, ii. If required to attend the assessment centre, informing him of the area of crime/ major incident/ HR process in advance. i. If so, was it reasonable for the respondent to have to take such steps, to avoid the disadvantage?j. Has the claimant suffered any injury to his feelings?k. Has the claimant suffered any financial loss as a consequence of the discrimination? Findings in fact[10]The Tribunal makes the following findings in fact:[11]The claimant is a Police Sergeant working under the direction and control of the Chief Constable of Police Scotland (the respondent) since 2018.[12]Police Scotland is the second largest force in the UK comprising about 17,000 police officers and 5,000 staff divided across 13 local policing divisions and national specialist support. The ranks in ascending order are: Constable, Sergeant, Inspector, Chief Inspector, Superintendent, Chief Superintendent, Assistant Chief Constable, Deputy Chief Constable, Chief Constable.[13]The claimant has a law degree. He has been a serving Police Officer for 18 years. He initially worked for an English Constabulary. He ranked in the top 10 in their national exams and was deemed exceptional. He transferred to Scotland in 2018. He was considered to be high performing officer and may well have been a candidate for the ALP (Accelerated Leadership Programme) but for his illness.[14]In 2019 the claimant developed haemochromatosis, Hashimoto’s autoimmune condition and possible complex PTSD which was understood to have arisen following a tick bite from which he contracted Lyme Disease. As a consequence of these conditions the claimant has reduced cognitive processing capacity (thinking) and information recall (memory), particularly in high pressure situations, and suffers from chronic fatigue. The effect of these conditions upon his daily living are recognised by the respondent as amounting to a disability.[15]In September 2022 the claimant attended his medical consultant who noted that the claimant reported fatigue, joint pain, and some difficulty in cognition and numeracy.[16]In December 2022 the claimant was reviewed by occupation health who described ongoing physical weakness in his limbs / joints which would make operational deployment including control and restraint unfeasible and he has ongoing fatigue but would be fit for office based duties with some adjustments.[17]He holds a disability passport which captures agreed adjustments including the following: he needs 10% extra time during assessment examinations to enable cognitive processing while under stress; he works 4 days with a day off in the middle of the week to recover from chronic fatigue; he may have a break/ leave work early to regain cognitive processing; he is not deployed to front line roles in light of his physical limitations and the effect of stress on his cognitive processing. The claimant noted that he needs time away to recharge and regain normal cognitive processing, his condition deteriorates in line with stress/ pressure, he can undertake nearly all police work at a high level.[18]The claimant sought to be promoted from the rank of Sergeant to that of Inspector. The purpose of the rank of Inspector is to lead and manage teams to enable the maintenance of law and order. An inspector may be placed in an operational or a non-operational post, and may be deployed to front line policing which entails direct interaction with the public. They may be expected to make timely analysis and decisions under pressure.[19]Promotion from the rank of Sergeant to Inspector can be achieved through the NPPP, the ALP and exceptionally through selection by the Chief Inspector. Promotion processes are advertised every year.[20]The ALP is a talent management programme to identify offices who have the potential to become senior leaders.[21]The National Police Promotions Process (‘NPPP’) was designed by external business psychologists working in partnership with police officers at significant cost (£500k). The express aims of the NPPP are: to ensure all officer have a fair, clear and consistent opportunity to access promotion; to provide assessments that test job knowledge, leadership, behaviours and values, as well as the application of police policy, procedure and legislation; and to provide reasonable adjustments in line with the Equality Act and their disability and employment procedures. The NPPP seeks to ensure that officers of a particular ranks meet relevant standards of knowledge and ability. Applicants who have a physical or mental impairment that makes it hard for them to complete any part of the promotions process are advised to raise this with the promotions team or otherwise with a view to establishing what adjustments are required. The Scottish Police Disability & Carers Association (DACA) was consulted on the NPPP. The NPPP was subject to an Equality Impact Assessment.[22]The NPPP was designed to validate, compare and test candidates with a view to achieving predictive validity – to accurately predict how well a candidate will perform in their future rank. Its design centres around the Competency and Values Framework (CVF) which sets out nationally recognised standards for police work. There are four values: integrity; fairness; respect; and human rights. There are six competencies: 1. We are emotionally aware; 2. We take ownership; 3. We are collaborative; 4. We deliver, support and inspire; 5. We analyse critically; 6. We are innovative and open minded. Each competency is split into 3 levels. Level 2 applies to Sergeant and Inspector and Chief Inspector. Examples at Level 2 in respect of each competency include: 1. I considered the perspective of people from a wide range of backgrounds; 2. I take responsibility for making improvements to policies, processes and procedures; 3. I manage relationship and partnership for the long term, sharing information and building trust; 4. I give clear directions and have explicit expectations; 5. I ensure that the best available evidence from a wide range of sources is taken into account; 6. I use a wide variety of tools when faced with a problem.[23]There are a number of stages to the recruitment process including: an application requiring line management support; a divisional and/or national sift; and an assessment centre subject to moderation.[24]An eligible Sergeant must submit a detailed application for promotion seeking to evidence the relevant values and competencies. This application is reviewed by a first and a second line manager who consider whether the candidate is ‘Ready now’ for promotion. There is then a divisional and/or national sift after which the remaining candidates are invited to an Assessment Centre.[25]At the Assessment Centre candidates are given 3 different scenarios pertaining to a crime, a human resources issue and a major incident. These scenarios represent core police work (to protect the public and to prevent and detect crime) and are based upon real life events. For each scenario, candidates are given 15 minutes to review the brief information provided and prepare a response. They then have 10 minutes to provide a response to two assessors; and then 10 minutes to respond to 3 predetermined supplementary questions. These time limits are adjusted to accommodate need arising from disability (a 25% increase is not uncommon).[26]For the crime and incident scenarios 6 out of the 7 categories which are scored pertain to the Competency and Values Framework and 1 out of 7 to Policing Knowledge which pertains to law, policy and procedure. In respect of each scenario candidates are advised which values and competencies they are expected to exhibit in their response. Their responses are rated from 1 (not effective) to 5 (exceptional) by trained assessors of at least two ranks senior with reference to a scoring matrix. The matrix details behaviours which positively or negatively reflect Competencies and Values tailored to each scenario. Candidates must be familiar with the broad principles of policing policy, procedure and the law but there is no requirement for detailed knowledge or recall. Candidates must score at least 3 (‘effective’) in all categories to pass. The scores are reviewed by a moderation panel with a view to ensuring consistency and fairness. There is a right of appeal at various stages of the promotions process.[27]One of the 3 scenarios at the Assessment Centre pertains to a major incident (e.g. major fires, train derailments, etc). Major incidents are managed by Police Incident Officers who are specially trained although other officers may be in attendance or give support. Some candidates who attend the Assessment Centre are PIO trained and some are not. A fraction of the score pertains to knowledge and the majority to exhibiting values and competencies. The behavioural indicators for the values and competencies are tailored to each scenario. The test does not measure their past experience but that experience may inform their knowledge.[28]Candidates are not formally expected to prepare for the Assessment Centre but many candidates do engage in preparation out of working hours by reading standard operating procedures and policies. Some candidates who prepare do not pass the Assessment Centre and some candidates who do not prepare pass the Assessment Centre.[29]Where more candidates pass the Assessment Centre than there are known vacancies a merit line will be drawn by the moderation panel. The number of successful candidates depends upon the number of projected vacancies. It is therefore a competitive process and not all candidates who are deemed Ready Now will be promoted.[30]Successful candidates are placed in a promotions pool and are usually place in post within 6 months according to score, specialism and geographical preference. There is a right of appeal at key stages of the promotion process.[31]In the 2023/4 and 2021/22 the majority of those candidates who attended the Assessment Centre passed and were placed in the promotions pool. Some candidates make a number of attempts at promotion before succeeding.[32]Around 4% of Sergeants have declared a disability compared with 3% of Inspectors. According to respondent monitoring the percentage of disabled applicants (whether declared and seeking adjustments) broadly reflected the percentage of successful candidates who are disabled. However disabled candidates are less likely to apply for promotion.[33]Forces in England and Wales apply the NPPF (National Policy Promotion Framework) to determine promotion to the rank of sergeant or inspector. It has four steps: 1. Achieving competence in current rank; 2. Examination of law and procedure; 3. Local selection process and matching to vacancies; 4. Temporary promotion (12 months) and a work based assessment. Each force determines individually the structure and techniques used at Step 3.[34]On 27 July 2023 the claimant emailed advising that he wouldn’t be able to be promoted to Inspector because he did not think he would pass the assessment centre because he struggles with recall and cognition particularly in pressure situations and asking to be assessed in post for a year instead. He met with Lindsay McGarth, National Promotions Team Manager (‘LM’) who declined his request.[35]In July 2023 the respondent noted in their Equality Impact Assessment that as a consequence of their consultation with DACA they sought to test operational knowledge and ability (rather than time served operationally which may be a substantial barrier for disabled applicants).[36]On 14 November 2023 the Scottish Police Disability & Carers Association (DACA) released its Membership Survey. Around 750 officers and staff are members of DACA. 20% (116) of the membership completed the survey. 56% (65) of those surveyed were Police Officers. 40% stated there were barriers to promotion because of disability or caring responsibilities. Some commented that the operational focus of the assessment centre and its gearing around rapid cognition represented a significant barrier with many self-selecting out of the process. 53% were unsatisfied with their experience of having requested reasonable adjustments.[37]The claimant was encouraged and supported to apply for promotion to the rank of Inspector by his line manager, Lee Page who was due to be promoted from Inspector to Chief Inspector (thereby creating a local vacancy). On 4 December 2023 the claimant submitted his MyCareer Form and Reflections Log in support of his application for promotion to Inspector. It sought to provide highly detailed evidence in support of the four values: (integrity; fairness; respect; and human rights) and the six competencies: (1. We are emotionally aware; 2. We take ownership; 3. We are collaborative; 4. We deliver, support and inspire; 5. We analyse critically; 6. We are innovative and open minded). Following its review, his line manager (LP, CI) considered that he was ‘Ready now’ for promotion to Inspector. The claimant then passed the regional and national sift. Candidates would then be invited to an Assessment Centre usually on 1 weeks’ notice with assessments due to start in midJanuary.[38]On 19 December the claimant’s division arranged a meeting between future applicants and past successful candidates to discuss what was entailed at Assessment Centre. At that meeting candidates were encouraged to prepare as much as they could in their time off in the month prior to assessment.[39]On 20 December 2023 the claimant requested to be assessed in post for 1 year with the option to revert back if he was failing short of the required level which he asserted mirrors the NPPF framework used in England and Wales. He explained his disability and how it manifests. He explained that because of his disability: he would fail to process information in the requisite times; even with time extensions his ability to access, recall and articulate information would be diminished such that he would not score highly at Assessment Centre; the length of the AC would see his performance markedly decrease owing to fatigue from cognition pressure; he cannot properly prepare for the Assessment Centre because he requires to rest out of work and such preparation would result in his sick absence; and that a third of the assessment centre is focused on a major incident to which he can never be deployed front line and these incidents are managed by trained Police Incident Officers.[40]On 21 December 2023 LM, Promotions Manager expressed concern to colleagues that she did not consider this to be a reasonable adjustment but said they would instead work to put in place adjustments to the Assessment Centre process. On 21 December PR, Superintendent replied noting that on initial review he could not see how they can support this but that there should be consultation with Lindsay Spence of EDI who was not available until midJanuary 2024. Lindsay Spence subsequently considered that his request did not amount to a reasonable adjustment.[41]In around December 2024 the claimant began to undertake research regarding the law on reasonable adjustments and sought legal advice from the Equality and Advisory Service.[42]On 30 January 2024 LM, Promotions Manager met with the claimant to advise him that his request was refused but that the following adjustments were suggested:a. Relocation of the assessment centre to his local station to reduce travel time and therefore physical and cognitive fatigue;b. Time spent at Assessment centre extended from a ½ day (for all 3 scenarios) to spread over 5 days: scenario 1 on Monday, rest day Tuesday, scenario 2 on Wednesday, rest day Thursday, and scenario 3 on Friday;c. Extended preparation time before each scenario; andd. Extended preparation time for the follow up questions.[43]It was expressly stated that “This is not exhaustive, and we can absolutely consider any other adjustments to the assessment centre” including written copies of verbal follow up questions “but we will take your lead on anything else you’d find supportive”.[44]On 30 January 2024 the claimant replied referencing advice he had received regarding raising a grievance and a recommendation that he take the matter further to ACAS/ tribunal.[45]On 2 February 2024 the claimant stated that the decision was taken taking without reviewing all of the information; that he has a holiday in March and the assessment centre could be at the end of it but he would have to spend that holiday preparing (spending weeks trying to gain the equivalent of cognitive muscle memory) rather than recuperating which risks sickness absence and spending quality time with his wife; he sought permission for acronym sheets as prompts; he sought a written rationale for declining his request and asked whether their position has changed in light of the further information provided.[46]On 12 February LM responded advising that his request is not reasonable because it involves the removal of a process in its entirety and not an adjustment to an existing one and his proposed adjustment entails no formal assessment of readiness for promotion by a panel of assessors.[47]On 13 February 2024 the claimant advised that he would be raising a grievance. He sought a more comprehensive and detailed rationale for the refusal. On 14 February 2024 Paul Rollo, Superintendent, Recruitment and Selection replied explaining that the assessment centre is a competitive process where applicants are tested on policing focused exercises and assessed against the CVF, that the process has been designed by expert business psychologists, and that to assess him in post would put other candidates at a significant disadvantage, especially those who pass at the assessment centre but fail the merit line. He advised that the respondent would not be engaged in further dialogue regarding the refusal and it was now up to him to decide whether to proceed or to withdraw.[48]On 21 February the claimant advised that with the reasonable adjustments offered he would have to withdraw from the promotions process but a possible solution would be for him to be informed of the area of crime/ PIO event/ HR process in the scenarios that will be reviewed in the Assessment Centre to reduce the risk of sickness absence in preparing outside of work and mitigate cognition issues with a smaller amount of information to be recalled. (This would very substantially reduce the significant number of possible scenarios.) On 23 February LM advised that the following additional adjustments would be accommodated: a. In a controlled environment 1 hour in advance, he would be advised in general terms of a broad overview of the nature of the scenarios to assist him cognitively.[49]On 23 February the claimant advised that he was withdrawing from the promotions process because the proposed adjustment would still necessitate him having to prepare for all potential scenarios prior to the assessment leading to the same impact. He instead required this information next week before he goes on extended annual leave so that he could prepare and rest in equal measure with a view to undertaking the assessment in April upon his return.[50]On 27 February 2024 the claimant submitted a grievance on the following grounds:a. The refusal of the first adjustment (assessment in post for 1 year) was unreasonable because: it mirrors the NPPF framework used by Police Forces elsewhere in the UK; he was not seeking removal of the entire process having passed the competitive paper sift; he has previously worked at the level of Temporary Detective Inspector and his application proves that he has worked consistently at that level.b. The refusal of the second adjustment (advance notice of the nature of the scenarios to reduce preparation) was unreasonable because no rationale was given for refusal and he was instead offered 1 hour notice. Some forces give cognitively impaired disabled candidates information in advance.c. The promotions process is geared towards operational officers because he is not a trained PIO and he will never undertake front line policing.d. Having disclosed the full extent of his disability senior managers are questioning whether he is fit for the role of inspector.[51]The claimant’s grievance was investigated by Superintendent Jon Harris who took statements from those involved including the claimant in April 2024 and the promotions manager.[52]In June 2024 the claimant proposed that the respondent replace the Assessment Centre with an interview panel process for him which was declined.[53]Superintendent Jon Harris provided his findings in respect of the grievance on 27 July 2024 which were as follows:a. Adjustments to the Assessment Centre itself may have mitigated his disadvantage and he should have continued with that process rather than withdraw and it is not known whether he would have been successful candidate.b. It was noted that other forces and Police Scotland’s own ALP do not require an assessment centre.c. He did not believe continuous assessment would bring significant extra costs.d. He concluded: “Given that such a mechanism already exists in Police Scotland it is therefore not an unreasonable request for something similar to mitigate the disadvantage you would face at a traditional assessment centre. I will therefore recommend that People & Development consider if there is a more appropriate continuous assessment process or alternative adjustments above what has already been offered, that could be used to assess your suitability for promotion”.e. “It was highlighted that the assessment centre is designed to reflect what a promoted officer is likely to encounter once in a promoted post. I must consider that whilst you personally may not deploy as a PIO, you will need to support, guide, and manage those who will. You therefore do need to have an understanding of the processes, policies and legislation that would be considerations for such incidents.”f. The fact that some assessment centres do remove all policy context from a scenario “does demonstrate that is a practical and effective solution, so not inherently unreasonable. I don't think it's unreasonable for a non-deployable officer to be afforded a different scenario that more accurately reflects and non-operational role, whilst maintaining a place for job knowledge and allowing a candidate's values to be assessed… Whilst you may not be deployed as a PIO, you would provide those that are with valuable support or remote guidance, and assessment more geared to that supporting role may well be an appropriate reasonable adjustment”.g. “I must conclude that as you did not undertake the assessment, that is all hypothetical. We do not know what scenario you would have encountered, or whether your disabilities limiting your operational experience would have being a disadvantage. I cannot therefore substantiate that you have been discriminated against or wronged in any way.”[54]In September 2024 the claimant secured a temporary promotion to Inspector for 9-12 months (starting in January 2025) and he sought to be assessed in post in light of the grievance recommendations. On 3 October 2024 the Promotions Team confirmed that they would not be implementing the recommendations.[55]Had the claimant been promoted to the rank of Inspector and a post identified his salary would have increased by £5,703 a year and more subsequently because of the opportunity to increase levels up to a difference of £12,207. That wage increase would also have increased his pension entitlement and lump sum payment accordingly.[56]On 6 September 2024 the claimant with the support of Lee Page (now Chief Inspector) asked to be assessed in rank whilst providing temporary cover for an Inspector during maternity leave.[57]In August 2024 the claimant submitted an FOI request posing eight questions to the 44 Territorial Police Forces in England and Wales and replies were received in September and October 2024 from 34 forces. The claimant prepared a detailed analysis of those replies. Of the 34 who replied, 3 forces would provide candidates who would be disadvantaged because of cognitive impairments with written questions/ some information prior to interview and 1 force would give such candidates all information. The majority of forces used the NPPF process which includes temporary promotion (12 months) and a work based assessment. Half the forces did not use an Assessment Centre. Observations on the evidence[58]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur. Facts may be proven by direct evidence (primary facts) or by reasonable inference drawn from primary facts (secondary facts).[59]The evidence of all of the witnesses was largely consistent including with the contemporaneous documentary evidence and there was on the whole no reason to doubt their credibility and reliability.[60]The claimant stated in evidence that he withdrew his application because he did not think he could pass the assessment centre particularly without any preparation and especially if there was a merit line. He did however accept that there was no downside to sitting the test (aside from being unable to resist the urge to prepare and embarrassment as to his performance which he only referenced in submissions).[61]The claimant struck us as a highly capable and effective individual despite his chronic fatigue and cognitive issues. The claimant performed to an exceptional standard at assessments prior to his tragic illness. His fatigue and reduced cognitive capacity unfortunately meant it was highly unlikely he would perform to that exceptional standard in future. However we had no evidential basis upon which to reasonably conclude that there was a real risk of him not passing the assessment centre with the adjustments proposed by the respondent. Indeed we considered it was likely he would have passed with the adjustments proposed by the respondent for the reasons noted below.[62]His line manager described him as one of the strongest performing members of the sub-division (notwithstanding his illness) who was still able to perform his duties to a very high standard. His division had a high pass rate at the Assessment Centre. Whilst not a comparable scenario, for this hearing the claimant had prepared a highly detailed and logical witness statement albeit not under time constraints, under the pressure of cross-examination he was able to articulate reasoned and informed answers to questions, whilst he had a crib sheet for the initial questions he posed in cross-examination he asked apt supplementary questions, and although at times over the 5 days he was affected by significant fatigue he appeared to us to be a highly capable individual.[63]Whilst his line manager supported the additional adjustments sought by the claimant, and considered it unlikely he would pass without any preparation, he nevertheless encouraged the claimant to attend the assessment centre and by inference thought he could pass with some preparation. As the claimant himself stated in chief “Even if I could scrape a pass with my bare wit and experience [i.e. without undertaking preparation], I was never going to pass moderation”. The claimant’s evidence centred around the need “to get top marks” and to score highly. However in that year the moderation panel did not draw a merit line and there was no requirement to score top marks to secure promotion.[64]The claimant stated in evidence that he would not score highly in respect of the major incident scenario because he is not PIO trained and can no longer be deployed to a front line role. Whilst he is not PIO trained, he has significant front line experience and he continues to support others who are deployed to a front line role. Whilst it would be somewhat more difficult for him to demonstrate the knowledge element and the values and competencies of the major incident scenario, this could have been addressed by preparation and we did not consider that this would have materially affected his score and therefore his chances of being selected.[65]We considered it likely that the claimant would have prepared for the assessment centre. The claimant stated in evidence that he was not prepared to attend the assessment centre without undertaking substantial preparation but this would have impacted upon his health. We considered it likely that in light of his reduced capacity for learning and remembering the claimant would require to prepare crib sheets summarising police knowledge and would require to create and memorise of mnemonics to assist his recall under pressure. The claimant undertook substantial work in preparing for the tribunal hearing which exacerbated his symptoms and this resulted in his first sick absence in a year. However we considered it likely that had he not withdrawn his application, there was sufficient time between passing the sift in December 2023 and attending the Assessment Centre in April 2023 for the claimant to have struck a balance between undertaking additional preparation whilst avoiding a negative impact upon his health. His line manager advised he would have given him opportunity to prepare during working hours. The claimant was absent on holiday for 3 weeks in March 2023 and the claimant proffered that he could have used some of that time to prepare. These timescales could have accommodated both the summarising policing knowledge over a longer time frame and then memorising mnemonics over a brief intensive period immediately prior to the assessment centre.[66]The claimant lodged in evidence an analysis of the 2022 moderation panel prepared by Sergeant IJ (voluntary Chair of DACA) which showed nonoperational officers are more likely to be disabled and non-operational officers are less likely to pass at Assessment Centre based upon his own classification of divisions into operational or non-operational. Being operational does not correlate with being deployed front line. According to the methodology used the claimant was operational but he is not capable of being deployed front line. There are non-operational officers who are capable of being deployed front line. Further there are some disabled officers who are front line. Claimant’s submissions[67]The claimant’s submissions (40 pages) were in summary as follows - Indirect discriminationa. There was a provision, criterion or practice of requiring candidates attending the Assessment Centre to undertake a large amount of preparatory work outside of working hours (‘PCP 1’). Preparation was the norm and was encouraged by his division which is reflected in the high pass rate (80%) for his division. Preparation was expected and considered essential for success in what might well be a competitive process (whether to draw a merit line was only decided after attendance at the Assessment Centre).b. The respondent assertion - that no preparation was required - was not communicated to him at the time and was accordingly not credible. Further, preparation was not expressly discouraged by the central Promotions Team. Their position was also contradictory because they proposed that candidates would be preparing throughout the year for areas in which they lack knowledge (e.g. major incidents).c. There was a provision, criterion or practice of requiring candidates to process and be questioned upon a prepared scenario in a timed environment (‘PCP 2’).d. There was a provision, criterion or practice where one third of the assessment focused on a major incident scenario (i.e. an incident which may be attended by a Police Incident Officer) (‘PCP 3’) Particular disadvantagee. DACA considered that the operational focus of the assessment centre put disabled officers to a disadvantage because they are more likely to be non-operational. Those disabled with a cognitive difficulty would struggle with responding in a timed environment (see comments within the DACA survey). The percentage of disabled officers reduces as the seniority of rank increases.f. See below under failure to make reasonable adjustments on whether the PCP put the claimant to that particular disadvantage.g. As regards PCP 1, the requirement to prepare without time to do so is preventing disabled candidates access to the assessment centre.h. As regards PCP 2, the use of time pressured assimilation and questioning is used to replicate response policing of front line incidents but many officers work in non-front line roles delivering the core objectives of protecting the public and preventing and detecting crime.i. As regards PCP 3, at the assessment centre candidates are given 3 different scenarios pertaining to a crime, a human resources issue and a major incident. The assessment centre has a deliberate operational focus and does not test what sergeants actually do in their role. The rank profile does not require operational policing. They should have used alternative scenarios such as dealing with complaints, dealing with statutory partners, reviewing criminal investigations or anti-social behaviour meetings. Alternatively, they should use a competency based interview. In any event, supporting the actions of a PIO does not require a granular knowledge of their methodologies.j. The PCPs were not a proportionate means of achieving a legitimate aim. The case Iain Jeffrey v Chief Constable of Police Scotland – Case No: 8000185/2023 is subject to appeal and may be distinguished because it considers a failure to pass a merit line rather than an inability to access the assessment centre. He instead ought to have been assessed in post or by interview or at least advised of the area for each scenario (see below). Failure to make reasonable adjustments a. See above under indirect discrimination on whether there was a PCP. Substantial disadvantage b. As regards PCP 1, if he undertook a large amount of preparatory work in his personal time he could not rest and this would have a substantial impact on his health and increase the impact on his wife’s caring responsibilities. In any event, he would require to engage in significant preparation to recall the information because his cognitive difficulties affected his short term memory recall particularly under pressure. c. As regards PCP 2, if he required to process and respond to questions upon a prepared scenario in a timed environment he would struggle because his cognitive difficulties affected his short term memory recall particularly under pressure. In order to provide a provide a satisfactory response to the scenarios candidates require to be familiar with 56 policies, 77 (SOP) standard operation procedures (SOPs) and 218 national guidance, and 18 Lord Advocate guidelines. Knowledge of policing also forms part of the marking of the competencies and values because the marking schemes requires identification of risk, action and priorities. He would require to engage in significant preparation to stand a chance of recalling and using that information. Candidates should be offered time off to prepare. d. As regards PCP 3, he was removed from the PIO course and he is no longer front line because of his disability. e. The PCPs individually or in combination meant he was unable to attend and pass the Assessment Centre. Knowledge of disadvantage f. He had set out in detail the impact upon him. Reasonable adjustments g. Instead of attending the Assessment Centre, the claimant ought to be assessed in post (monitoring his performance) as a Temporary Inspector for a period of 1 year with an option to revert him back to Sergeant if he was found to be failing short of the required values, competencies or ethics (‘Adjustment 1’). h. Alternatively, he ought to be informed in advance of the Assessment Centre of the area of crime/ PIO event/ HR process (‘Adjustment 2’). A tribunal accepted that a dyslexic employee should be given 25% extra time in the exam (Paterson v Police Commissioner UKEAT/0635/06). i. Adjustment 1 (assessment in post) was deemed reasonable by the Equality Advisory & Support Service because other UK police forces of comparable size adopt this approach. It is also reasonable because the claimant had already been assessed as ‘ready now’ by 2 line managers following a detailed application and a sift process. He was thereby verified as being able to perform at that rank. A suitable post was available. In view of a temporary promotion he will work at the rank of Inspector for 12 months and is clearly viewed as competent to perform the role. j. It may be reasonable for an employer to dispense with their competitive interview process (which may entail more favourable treatment) where an employee is at risk of dismissal for want of capability due to their disability (Archibald v Fife Council [2004] IRLR 651, HL). The failure to remove the assessment centre was akin to a prospective employer’s failure to bypass a situational judgment test prior to interview (that employer was a member of the Disability Confident Scheme which ensures progress to interview where the job criteria are met) (British Telecommunications Plc v Meier [2019] NICA 43).k. A competitive comparison could be undertaken by using skilled analysts to compare and contrast different data sets arising from assessment in post and score at Assessment Centre. Police Scotland has a large annual budget and can readily afford the financial costs and staff time associated with creating that framework if there is the desire to do so. The need to do this for others is a positive and not a negative – it would create a pathway that permits access by underrepresented and protected groups.l. Ms McGrath, Promotions Manager was a business psychologist from the private sector and her knowledge of policing is minimal. She was hostile to concepts originating from other police forces. She failed to meet with the claimant to better understand his conditions, their impact and the adjustments required. She failed to obtain occupation health or medical advice. She erroneously thought him suitable for the ALP. She spent less than a day considering his request and Supt Rollo spent 12 minutes – there was no feasibility study. She provided only a very brief response to his detailed explanation and was rigid in her thinking. The lack of process by the Promotions Team is notable and concerning – the FOI showed that other forces would have adopted a reasonable process. The fact that the grievance hearer provided with the relevant facts came to the view that the adjustments were reasonable suggests that the refusal of the adjustments is personality driven.m. The failure to consider adjustments amounted to discriminationn. Further, a claimant may bring a complaint for failure to make an adjustment not suggested by them (Project Management Institute v Latif cited in Wade v Sheffield Hallam University UKEAT/0194/12/LA). The adjustments proposed by the respondent did not address the particular disadvantages he suffered because of the preparation time (Linsley v HMRC UKEAT/0150/18/JOJ). They were not willing to continue to work with the claimant to find other reasonable adjustments.o. Reasonableness should be considered at an organisational and not departmental level. This would have made available other financial and staff support. The issue should have been escalated to the Assistant Chief constable. Where an employer’s own policy requires a particular adjustment they cogent reasons for departing from it (Linsley) and likewise by extension recommendations arising from its grievance process.p. Adjustment 2 (being informed in advance of area for each scenario) was reasonable as an alternative method of assessment because it was an adjustment offered by other forces. It offered the claimant parity rather than an advantage. It would reduce the amount of preparation as a compromise although this would still cause him physical harm. It was akin to the reasonable adjustment of allowing answers to a test by a short narrative where multiple choice answers put applicants disabled by Asperger’s to a disadvantage (Government Legal Service v Brookes UKEAT/0302/16/RN). The risk of information being leaked was not an issue because he could be tested last. There were no impact costs or practicalities – it was the personal view of Ms McGrath who was rigid in her thinking which was not rationalised in any audit trail. Financial loss a. He will suffer losses for the remainder of his career including loss of wages from April 2024 (when other candidates were put in post) of £82,202, pension loss of £59,209 plus lump sum pay out of £3,525. b. His chances of passing subsequent promotions remain the same unless the process is changed and will be further reduced when a merit line is drawn. He is unlikely to leave a vocational role particularly in a rural area with limited employment prospects. There should accordingly be no percentage reduction to the award. Injury to feelings c. The failure to make reasonable adjustments meant he suffered the embarrassment of having to publicly expose his disability (in raising a grievance and then tribunal proceedings) and feelings of worthlessness especially when the respondent refused to follow the recommendations of their own grievance procedure. The middle Vento band of £23,450 applies because the failure to make reasonable adjustments prevented him from pursuing promotion opportunities in circumstances where he remains on good terms with the respondent but his health has suffered in preparing for and undertaking this hearing. (He relied upon number of tribunal decisions of persuasive (not binding) authorities.) d. Notwithstanding comments made the claimant confirmed he was not seeking a recommendation. Respondent’s submissions[68]The respondent’s submissions (27 pages) were in summary as follows - Indirect discriminationa. There was no provision, criterion or practice of requiring candidates attending the Assessment Centre to undertake a large amount of preparatory work outside of working hours (‘PCP 1’). There is no requirement to have detailed policing knowledge i.e. of policy, procedure and the law.b. There was a PCP requiring candidates to process and be questioned upon a prepared scenario in a timed environment (‘PCP 2’).c. There was a PCP where one third of the assessment focuses on a major incident scenario (i.e. an incident which may be attended by a Police Incident Officer) (‘PCP 3’) Particular disadvantaged. There was no evidence that the PCPs put persons who share the claimant’s disability to the particular disadvantage in comparison with persons who do not. There was no evidence regarding the number of persons who share the claimant’s disability (the group) or the proportion of that group negatively affected. The statistical analysis indicated that disabled persons as a whole are not put to a disadvantage.e. As regards PCP 3 (major incident scenario) there was no statistical evidence that disabled candidates are less likely to have extensive front line experience or PIO training.f. See below under failure to make reasonable adjustments on whether the PCP put the claimant to that particular disadvantage.g. The aim of the NPPP promotions process is to ensure officers of a particular rank meet relevant standards for values, competencies and knowledge. The core of police work is to protect the public and to prevent and detect crime. It is reasonable and necessary for all police officers (whether they are front line or providing support and advice to others) to understand the core of police work and to have policing knowledge. The assessment centre is designed to test that values, competencies and knowledge in the context of core police work. The NPPP was subject to consultation including with the staff association DCAS, an Equality Impact Assessment and statistical monitoring for disparate impact.h. As regards PCP 1, candidates are expected to have a broad familiarity and not detailed policing knowledge. Only 2 of the 21 scores at the Assessment Centre pertain to policing knowledge and the rest to values and competencies. A large amount of preparatory work is not therefore required for a candidate who is considered ‘ready now’ by their line managers and following a sift.i. As regards PCP 2, the assessment centre is timed because officers in that rank are expected to make timely analysis and decisions whether or not front line. The time limits are adjusted to accommodate need arising from disability.j. As regards PCP 3, at the assessment centre candidates are given 3 different scenarios pertaining to a crime, a human resources issue and a major incident. The crime and major incident scenarios pertain to the core of police work.k. As regards the major incident scenario only 1 of the 7 scores in respect of this scenario pertain to policing knowledge and the rest to competencies and values. An Inspector may be front line or provide support and advice to others who are front line and it is reasonably necessary to test that knowledge. Candidates do not required to be experienced in the role of Police Incident Officer or attend the PIO course to have this knowledge. Many officers do not undertake the PIO course and are promoted to Inspector.l. The PCPs (if established together with disparate impact) were a proportionate means of achieving a legitimate aim. Failure to make reasonable adjustmentsm. See above under indirect discrimination on whether there was a PCP. Substantial disadvantagen. As regards PCP 1 (if established), the claimant would have been given the opportunity to prepare in his working time and also take annual leave in advance of the assessment centre and accordingly PCP 1 (requirement to undertake large amount of preparatory work which is denied) would not put him to a substantial disadvantage.o. As regards PCP 2, the preparation time and the response time for each scenario was to be extended to accommodate his needs and accordingly PCP 2 (requiring candidates to process and be questioned upon a prepared scenario in a timed environment) would not put him to a substantial disadvantage.p. As regards PCP 3, only 1 of the 7 scores in respect of this scenario pertain to policing knowledge and the rest to competencies and values. An Inspector may be front line or provide support and advice to others who are front line and it is reasonably necessary to test that knowledge. Candidates do not required to be experienced in the role of Police Incident Officer or attend the PIO course to have this knowledge. Many officers do not undertake the PIO course and are promoted to Inspector. Knowledge of disadvantageq. If PCP 1 is established, it was not known that the claimant was unable to undertake preparation without damage to his health. Reasonable adjustmentsr. Instead of attending the Assessment Centre, the claimant sought to be assessed in post (monitoring his performance) as a Temporary Inspector for a period of 1 year with an option to revert him back to Sergeant if he was found to be failing short of the required values, competencies or ethics (‘Adjustment 1’).s. Alternatively, he sought to be informed in advance of the Assessment Centre of the area of crime/ PIO event/ HR process (‘Adjustment 2’).t. Adjustment 1 (assessment in post) was not reasonable because it did not meet the express aims of the NPPP. Assessment in post would not be fair, clear or consistent because it would depend upon there being a suitable vacant temporary post; the assessment would be inconsistent because the candidates would face different scenarios which would be assessed by different line managers; and there would be no means to undertake competitive comparisons (required in years where a merit line is drawn). Assessment in post is wholly incomparable to the highly controlled environment of the assessment centre where responses to identical scenarios are scored by trained assessors with reference to a scoring matrix. In order to achieve any degree of fairness, clarity, consistency and comparison they would require to develop a framework, pilot and training at very significant time and financial cost.u. Adjustment 2 (prior notice of the scenario areas) was not reasonable because this did not enable a fair and consistent comparison since officers do not get prior notice of what crimes or incidents will actually occur and further this would very substantially restrict the areas of testing from hundreds of possible scenarios to just three enabling the claimant to undertake highly focused preparation wholly unavailable to other candidates. Financial lossv. The claimant suffered no losses to the date of tribunal because the average period for promotion is 6 months from entering the promotions pool (early May 2024).w. The claim for whole career loss is dependent upon multiple contingencies: whether he would have passed the assessment centre had he elected to attend (there was a 52% pass rate nationally; 80% for his division); whether he would have secured subsequent temporary promotions (which he has currently) whether he would have passed in subsequent years (benefiting from prior attempts and experience gained from temporary promotions); whether he would continue to be fit to serve if future deterioration in his conditions.x. Ignoring these contingencies his net wage loss is £74,940. The pension loss attributable to that is £14,802. Those figures should be reduced by 75% to take into account those contingencies. Injury to feelingsy. The claimant did not assert physical or psychological injury (including exacerbation of his conditions) as a consequence of the refusal of his adjustments and/or his decision to withdraw from the promotions process. He merely described being “upset”. Any physical or psychological effect or injury (including time of work) was wholly attributable to his involvement in these proceedings. Accordingly any aware should be at the lowest end of the Vento scale namely £2,000. Discussion and decision Indirect disability discrimination[69]Indirect discrimination arises under Section 19 EA 2010 where: an employer applies a provision, criterion or practice ('PCP') to a worker; the employer applies or would apply that PCP to persons who do not share the worker’s protected characteristic and persons who do; the application of the PCP did or would put persons who share the Claimant’s protected characteristic to a particular disadvantage in comparison with persons who do not share it (‘group disadvantage’); the application of the PCP did or would put the Claimant at that disadvantage (‘individual disadvantage’); and the employer cannot show it to be a proportionate means of achieving a legitimate aim (‘objective justification’).[70]The burden of proof is on the Claimant to prove the PCP, the group disadvantage and the individual disadvantage. If established, the burden of proof is on the Respondent to prove objective justification.[71]Direct discrimination is aimed at inequality of treatment; indirect discrimination is aimed at equality of treatment which has an inequality of results (Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27). Application of a provision, criterion, practice[72]The PCP must have been applied or would have been applied to the worker and others.[73]It is for the Claimant to identify the PCP relied upon in making the complaint. The words “provision, criterion or practice” are cumulative and do not require an absolute bar (British Airways plc v Starmer [2005] IRLR 862, EAT) but do not include every act that results in inequality (Ishola v Transport for London [2020] EWCA Civ 112). They connote a state of affairs indicating how the employer generally acts in that situation. A one off decision may amount to a practice if there is a reasonable basis to infer that the same decision would be taken if a similar situation arose again.[74]The phrase PCP should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions (para 4.5 ECHR Code).[75]In respect of the Sergeant to Inspector Assessment Centre, the respondent did not apply the provision, criterion or practice ("PCP") of requiring candidates to undertake a large amount of preparatory work outside of working hours (PCP 1). Whilst the Promotions Team asserted that no preparation was expected or required, we did not consider this to be realistic given the need to demonstrate police knowledge in relation to multiple possible scenarios. This required broad familiarity with a significant number of policies and procedures in the context of what might be a competitive process. The claimant attended a divisional meeting at which candidates were encouraged to prepare as much as they could in their time off in the month prior to assessment. This meeting fell short of a practice of requiring candidates to undertake a large amount of preparatory work outside of working hours. Whilst some candidates did undertake a large amount of preparatory work outside of working hours, some did not, and there was no practice of the respondent requiring candidates to do so.[76]In respect of the Sergeant to Inspector Assessment Centre, the respondent did apply the provision, criterion or practice of requiring candidates to process and respond to questions upon three prepared scenarios in a timed environment (PCP 2).[77]In respect of the Sergeant to Inspector Assessment Centre, the respondent did apply the provision, criterion or practice of utilising an assessment where one third focuses on a major incident (PCP 3). Group disadvantage[78]Group disadvantage arises where the application of the PCP did or would put persons who share the Claimant’s disability to a particular disadvantage in comparison with persons who do not share it.[79]The pool for comparison is with all the workers to whom the PCP is applied and whose relevant circumstances are the same, or not materially different (Section 23(1) EA 2010). Where the PCP has not been applied to others it may be necessary to consider the pool of hypothetical comparators to whom it would apply (Starmer).[80]In general the pool for comparison should consist of the group which the PCP affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively (4.18 EHRC Code) (Essop). Once the PCP has been identified “there is likely to be only one pool which serves to test its effect” as a matter of logic (Allonby v Accrington and Rossendale College and others [2001] ICR 1189).[81]Looking at the pool, a comparison must be made between the impact of the PCP on those with the relevant protected characteristic and its impact on those without (4.19 EHRC Code). The disadvantage does not require to be serious, obvious or significant and includes any type of disadvantage.[82]Direct discrimination requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead, it requires a causal link between the PCP and the particular disadvantage. However, there is no requirement to show why it does by identifying the context factor (Essop).[83]Comparative group disadvantage may be established by quantitative and/or qualitative means e.g. by statistical evidence, personal testimony, expert evidence or judicial knowledge (Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15). However, “sometimes, a PCP is intrinsically liable to disadvantage a group with a particular protected characteristic” (4.10 EHRC Code).[84]Having regard to the PCPs in this case the relevant pool for considering group disadvantage is all those Sergeants who sought or would seek promotion to Inspector. The comparison is between those in that pool who have the same disability as the claimant (chronic fatigue and cognitive issues) and those who do not (which may include those with other disabilities).[85]Whilst the claimant asserted the disadvantage in categoric terms (the PCP would cause candidates with the same disability sickness and absence or to fail selection) we considered that it was sufficient if it materially increased their risk of sickness or failure. Failing selection was understood to mean not passing the Assessment Centre including any merit line if drawn.[86]There was no statistical evidence that PCP 1 (requirement to undertake a large amount of preparatory work) if it had been applied would put persons who share the claimant’s disability at the particular disadvantage of suffering sickness and absence. Further there was no qualitative evidence to this effect beyond the claimant’s own testimony. The DACA report did not provide quantitative or qualitive evidence to this effect. However we considered that had there been a requirement to undertake a large amount of preparatory work outside of working hours that would have been intrinsically liable to materially increase the risk of illness and absence amongst candidates with chronic fatigue.[87]There was no statistical evidence that PCP 2 (questions upon a prepared scenario in a time environment) put persons who share the claimant’s disability at the particular disadvantage of being unable to process and respond adequately in the timescales thereby materially increasing their risk of failure at the Assessment Centre. Whilst there was qualitative evidence that some candidates with cognitive issues struggled with the time pressures (including the claimant’s own testimony and comments in the DACA report), there was no evidence that they had higher failure rates at the Assessment Centre and it cannot be said that PCP 2 was intrinsically liable to have that effect.[88]There was no statistical evidence that PCP 3 (third scenario focused on a major incident) put persons who share the claimant’s disability at the particular disadvantage of being unable to respond adequately thereby materially increasing their risk of failure at the Assessment Centre stage. There was evidence that it would be somewhat more difficult for the claimant to demonstrate knowledge in respect a major incident scenario because he could no longer be deployed front line. It is reasonable to infer that others who suffer from chronic fatigue cannot be deployed front line. Whilst it is somewhat more difficult for an officer who does not have recent front line experience/ training to demonstrate knowledge in relation to a major incident, there was no evidence that this materially increased their risk of failure at the Assessment Centre.[89]There were comments in the DACA report that some disabled candidates struggled with the operational focus of assessment. There was also statistical evidence that non-operational officers are more likely to be disabled and nonoperational officers are less likely to pass at Assessment Centre. However being operational does not correlate with being deployed front line. Furthermore there was evidence that the percentage of all disabled applicants (whether operational or not) broadly reflected the percentage who were successful at the Assessment Centre.[90]In these circumstances there was no reasonable basis upon which it could be concluded that PCP 3 (scenario focused on a major incident) put persons who share the claimant’s disability at the particular disadvantage of being unable to respond adequately thereby materially increasing their risk of failure at the Assessment Centre.[91]The issue of whether the PCP put the claimant to a particular disadvantage is considered below under reasonable adjustments.[92]Where there is a particular disadvantage it may be objectively justified if it is a proportionate means of achieving a legitimate aim.[93]The onus is upon the Respondent to establish justification. The test is objective and is therefore not limited to what the Respondent considered at the time of its application. Although judged at the time of application the justification does not have to have been consciously and contemporaneously considered by the Respondent. Justification may be established by reasoned and rational judgement (Chief Constable of West Yorkshire Police and anor v Homer 2009 ICR 223, EAT). Legitimate aim[94]A legitimate aim must be legal, should not be discriminatory in itself, and it must represent a real, objective consideration (4.28 EHRC Code). The health, welfare and safety of individuals may constitute a legitimate aim. Reasonable business needs and economic efficiency may be legitimate aims but solely aiming to reduce costs does not (4.29 EHRC Code).[95]The core of police work is to protect the public and to prevent and detect crime. The respondent has set standards for police work by way of the Competency and Values Framework and Policing Knowledge. The aim of the NPPP promotions process is to select suitable candidates (who meet relevant standards for values, competencies and knowledge) using a transparent, comparative and consistent process, and to select the best candidates (where there are more candidates than posts) using a competitive process. This aim corresponds to a real, objective need and is therefore legitimate. Proportionate means[96]In deciding whether the means adopted to achieve the legitimate aim are proportionate the tribunal must apply an objective test based upon a fair and detailed analysis of the working practices, business considerations and needs of the employer and the discriminatory effect of the means adopted (Hardy and Hansons plc v Lax 2005 ICR 1565, Court of Appeal).[97]The tribunal must conduct a balancing exercise between the discriminatory effects of PCP against the employer’s legitimate aim taking into account all relevant facts (4.30 EHRC Code). An objective balance must be struck between the discriminatory effect and reasonable need (Hampson v Department of Education and Science 1989 ICR 179, CA). There must be a nexus established between the function of the employer and the PCP (Greater Manchester Police Authority v Lea 1990 IRLR 372).[98]The PCP must be justified having regard to the quantitative and qualitative effective on the disadvantaged group (including the Claimant) rather than just the individual claimant (University of Manchester v Jones 1993 ICR 474, CA, the Court of Appeal).[99]A PCP is proportionate if it is an appropriate and necessary means of achieving a legitimate aim. (4.31 EHRC Code). “Necessary” means reasonably necessary – the employer does not have to demonstrate that no other means are possible (Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15, [2012] IRLR 590) but there must not be a less discriminatory measure which would have achieved the legitimate aim. An exception may be made to accommodate a protected group but not if doing so would undermine the aim (Blackburn and anor v Chief Constable of West Midlands Police 2009 IRLR 135, Court of Appeal).[100]Cost can only be taken into account as part of the employer’s justification if there are other good reasons for adopting the PCP (4.32 EHRC Code).[101]It is an objective test and after the event justification is permitted. Unlike the test for unfairness of dismissal, there is no range of reasonable responses (Hardy). The tribunal must make its own fair and detailed analysis of the working practices and business considerations in order to determine whether the PCP was reasonably necessary.[102]There is a nexus between the core of police work, the aim of selecting suitable (or best) candidates (who meet relevant standards for values, competencies and knowledge of police work) and any PCP of requiring preparation for an assessment to increase police knowledge (PCP 1), a timed environment in which that knowledge is tested (PCP 2) and reliance upon a major incident which pertains to core police work (PCP 3).[103]Whether the PCP was a proportionate means of achieving the legitimate aim of selection the best suitable candidates requires a balancing exercise between the particular disadvantage suffered by the group and the real need of the employer.[104]There was a reasonable basis upon which it could be concluded that PCP 1 (large amount of preparatory work), if applied, would put persons who share the claimant’s disability to the particular disadvantage of materially increasing their risk of sickness and absence. There was not a reasonable basis upon which it could be concluded that: PCP 2 (questions in a timed environment) put persons who share the claimant’s disability at the particular disadvantage of being unable to process and respond adequately in the timescales thereby materially increasing their risk of failing selection; or that PCP 3 (scenario focused on a major incident) put persons who share the claimant’s disability at the particular disadvantage of being unable to respond adequately thereby materially increasing their risk of failure.[105]In any event it appeared to us to be a proportionate means of achieving the legitimate aim for candidates to prepare with a view to increasing their broad police knowledge, to test their responses in a timed rather than an open ended environment to simulate making timely decisions under pressure (particularly where that time is extended as an adjustment for disabled candidates) and to test their knowledge, values and competencies in the context of a major incident which pertains directly to core police work (particularly where the test is of knowledge, values and competencies and not experience). Furthermore, there did not appear to us to be a less discriminatory alternative which met the legitimate aim of having a transparent, comparative, consistent, and where necessary competitive process for the reasons noted below in relation to the issue of reasonable adjustments. Failure to make reasonable adjustments - ss.20 & 21 Equality Act 2010 (“EqA”)[106]Under Section 20 of the Equality Act 2010 (‘EqA 2010’) an employer has a duty, “where a provision, criterion or practice of A's, puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.[107]The tribunal must identify the provision, criterion or practice (‘PCP’) applied, the non-disabled comparators, the nature and extent of the disadvantage, and the reasonableness of the proposed adjustment. The burden of proof is upon the claimant to establish the application of the PCP, the substantial disadvantage, and an adjustment which on the face of it could be reasonable in the circumstances. The burden of proof is then upon on the respondent. Application of a provision, criterion or practice[108]For the reasons set out above in relation to indirect discrimination -[109]In respect of the Sergeant to Inspector Assessment Centre, the respondent did not apply the provision, criterion or practice of requiring candidates to undertake a large amount of preparatory work outside of working hours (PCP 1).[110]In respect of the Sergeant to Inspector Assessment Centre, the respondent did apply the provision, criterion or practice of requiring candidates to process and respond to questions upon three prepared scenarios in a timed environment (PCP 2).[111]In respect of the Sergeant to Inspector Assessment Centre, the respondent did apply the provision, criterion or practice of utilising an assessment where one third focused on a major incident (PCP 3). Individual disadvantage[112]The PCP must put the disabled person to a substantial disadvantage in comparison with persons who are not disabled.[113]A substantial disadvantage is one that is more than minor or trivial. The purpose of the comparison with people who are not disabled is to establish whether the PCP puts the disabled person to a substantial disadvantage and not whether the disability causes it (Sheikholeslami v University of Edinburgh 2018 IRLR 1090, EAT). There is accordingly no requirement for a comparator group whose circumstances are the same. The nature of the disadvantage must be identified (Gardner v Chief Constable of West Midlands Police EAT 0207/13).[114]Whilst the claimant asserted the disadvantage he suffered in categoric terms (the PCP would cause him sickness and absences, or to fail selection) we considered that it was sufficient if it materially increased his risk of sickness or failure.[115]If there had been a provision, criterion or practice of requiring candidates to undertake a large amount of preparatory work outside of working hours (PCP 1) this would have put the claimant to the substantial disadvantage of struggling to undertake this volume of work without materially increasing his risk of sickness and absence in comparison with persons who are not disabled by reason of chronic fatigue, cognitive issues or otherwise.[116]In submissions the claimant’s case shifted from a requirement for all candidates to undertake a large amount of preparatory work, to a requirement for him to undertake a large amount of preparatory work because of his cognitive issues which he found difficult because of his chronic fatigue. The Assessment Centre tests broad police knowledge (policy, procedure and legislation). The claimant would need to undertake more preparation than other candidates who do not have cognitive issues to enable him to recall that information under the pressure of an assessment. The claimant would find it more difficult to undertake that preparation than other candidates who do not have chronic fatigue.[117]The provision, criterion or practice of requiring candidates to process and respond to questions upon three prepared scenarios in a timed environment (PCP 2) put the claimant to the substantial disadvantage of struggling to process and respond adequately in the normal timescales thereby materially increasing his risk of failure at the Assessment Centre in comparison with persons who are not disabled by reason of chronic fatigue, cognitive issues or otherwise.[118]The provision, criterion or practice of utilising an assessment where one third focused on a major incident (PCP 3) did not put the claimant to the substantial disadvantage of struggling to respond adequately thereby materially increasing his risk of failure in comparison with persons who are not disabled by reason of chronic fatigue or otherwise. Whilst it would be somewhat more difficult for the claimant to demonstrate knowledge in respect of a major incident scenario in comparison with those who had recent PIO experience or training this could have been addressed by some preparation and there was no reasonable basis to conclude that PCP 3 materially increased the risk of him failing to be selected in comparison with others who are not disabled. Knowledge of disability[119]Under Sch 8 Part 3 EqA 2010 the respondent is not subject to a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know that a disabled person has a disability and is likely to be placed at the substantial disadvantage by the PCP.[120]The respondent accepted that the claimant was disabled by reason of haemochromatosis, Hashimoto’s autoimmune condition and complex PTSD at the relevant time and that they knew or ought reasonably to have known this.[121]The tribunal must determine whether the respondent knew, or ought reasonably to have known, that the claimant was likely to be placed at the substantial disadvantage by the PCP (Wilcox v Birmingham CAB Services Ltd [2011] All ER (D) 73 (Aug), EAT). The respondent may be on sufficient notice as to the impairment, and its adverse effect, to merit further enquiries.[122]Having regard to the terms of his disability passport (which refers to a weekly day off to recover from chronic fatigue), the respondent knew or ought reasonably to have known that any requirement to undertake a large amount of preparatory work outside of working hours (PCP 1) was likely to put the claimant to the disadvantage of being unable to undertake that volume of work without risking sickness and absence.[123]Having regard to the terms of his disability passport (which noted 10% extra time during assessment examinations to enable cognitive processing while under stress) the respondent knew that requiring candidates to process and respond to questions upon three prepared scenarios in a timed environment (PCP 2) was likely to put the claimant to the disadvantage of being unable to process and respond adequately in the timescales.[124]Having regard to the terms of his requests for adjustments in December 2023, the respondent knew that the claimant was asserting that using an assessment where one third focused on a major incident (PCP 3) was putting him to a disadvantage because he can never be deployed front line. Reasonable adjustment[125]What is a reasonable step is to be considered objectively having regard to all the circumstances of the case. Paragraph 4.5 of the EHRC Employment Code (2011) (‘EHRC Code’) provides that “The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take: whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.” The tribunal should consider whether the adjustments as a whole have a real prospect of removing the disadvantage (Burke v The College of Law and anor 2012 EWCA Civ 37, CA).[126]Contrary to the claimant’s submissions the focus is on the practical step and not the process adopted (Royal Bank of Scotland v Ashton UKEAT/0542/09/LA). The carrying out of an assessment will make the employee better informed but of itself changes nothing (Spence v Intype Libra Ltd [2007] UKEAT/0617/06). Likewise failure to consult is irrelevant (Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664). The claimant need not have suggested an adjustment at the time (although this may leave an employer without knowledge of disadvantage).[127]It may require treating the disabled person more favourably to remove the disadvantage. This may entailing transferring an employee to a suitable vacant post without competitive interview to avoid dismissal (Archibald v Fife Council [2004] UKHL 32). However it is not about giving an advantage over and above removing the particular disadvantage and in some cases there may be no step which it is reasonable to take to remove that disadvantage (J Hilaire v Luton Borough Council EA-2020-000007-LA).[128]Although there was not a practice of requiring a large amount of preparation outside of working hours (PCP 1), the Assessment Centre tests broad police knowledge (policy, procedure and legislation). Whilst not his pleaded case the claimant would require to undertake more preparation than other candidates who did not have cognitive issues which he would find more difficult to do than other candidates who did not have chronic fatigue. PCP 2 (questions in a timed environment) put the claimant to the substantial disadvantage of struggling to process and respond adequately in the normal timescales. PCP 3 (scenario focused on a major incident) did not put the claimant to the substantial disadvantage of increasing his risk of failure but only if he undertook some preparation.[129]The respondent had proposed various adjustments and the effectiveness of those adjustments must be considered as a whole. The timing of the Assessment Centre was changed from January on 1 weeks’ notice to April on 3 months’ notice. The location of the assessment was changed from Glasgow to local to him. The duration of the assessment was changed from a ½ day to spread over 3 alternate days. The preparation time for each scenario and also for follow up questions was to be increased. The respondent was open to other adjustments which his manager advised would have included additional preparation time within working hours. We considered that the effect of these proposed adjustments taken together had a good prospect of addressing the disadvantages he would have suffered on account of the Assessment Centre. It was materially likely that these proposed adjustments gave him sufficient time to prepare in advance (including policing knowledge of major incident scenarios) without materially risking sickness and absence such that he could then process and respond adequately in the extended timescales at the Assessment Centre and accordingly he was not at a materially increased risk of failing selection.[130]The claimant asserted that instead of being required to attend the Assessment Centre (‘AC’) it would have been a reasonable adjustment for him to have been assessed in post for 1 year with the option to revert back if he was failing short of the required level (‘RA 1’).[131]Some employers (including other police forces) promote using assessment in post. RA1 would also have had a good prospect of addressing the disadvantages arising in consequence of the AC. RA1 therefore appears on the face of it to be reasonable and the burden of proof shifts to the respondent to prove that it was unreasonable in the circumstances (Project Management Institute v Latif 2007 UKEAT/0028/07CEA).[132]There are a number of material differences between the AC and RA1. The AC is assessed over ½ a day; RA1 would be assessed over 1 year. The AC is assessed by trained assessors with reference to a scoring matrix; RA1 would be assessed by his line manager. The AC tests values, competencies and knowledge with reference to the same scenarios; the values, competencies and knowledge tested by RA1 would depend upon the temporary role available and the scenarios that might arise. Under the AC a candidate is only selected if they meet the standards; under RA1 candidate is only rejected if they fall short of the standards. AC is therefore transparent, consistent, comparative and where necessary competitive; RA1 is not transparent, consistent, comparative or competitive. The grievance outcome considered RA1 to be “not unreasonable” but it did not consider whether it met the aims of the NPPP. The claimant proposed that an national framework could be created with a view to making RA1 more transparent, consistent, comparative and competitive; the respondent explained that this would entail a lengthy, costly and labour intensive process and would still not be as effective as the AC.[133]In these circumstances we did not consider RA 1 to be a reasonable adjustment because it undermined the legitimate aim of having a transparent, consistent, comparative and where necessary competitive process and it gave the claimant an unfair advantage in circumstances where the proposed adjustments had a good prospect of addressing the disadvantages he would have suffered at the AC.[134]In the alternative, the claimant asserted that it would have been a reasonable adjustment for him to have been informed of the area of crime/ major incident/ HR process in advance of the AC (‘RA 2’). It is inferred that he sought to be informed substantially in advance because this was directed at his preparation time.[135]Some police forces would give candidates with cognitive issues some information in advance but there was wide disparity as to how much information. Further RA 2 would also only address some of the disadvantages arising in consequence of the AC (the claimant stated he would still become ill). Notwithstanding that RA 2 is arguably reasonable on the face of it such that the burden of proof shifts to the respondent.[136]Advising the claimant of the area of crime / major incident/ HR process would have very substantially reduced the significant number of possible scenarios. Other candidates engaged in some preparation in recognition of those possible scenarios. We recognised that the claimant would require additional time to engage in that preparation given his cognitive issues and his chronic fatigue. We did not however consider RA 2 to be a reasonable adjustment because it undermined the legitimate aim of having a comparative and where necessary competitive process and it gave the claimant an unfair advantage in circumstances where the proposed adjustments (including additional time to prepare) had a good prospect of addressing the disadvantages he would have suffered at the AC.
Conclusion
[137]In conclusion the complaints of failure to make reasonable adjustments and for indirect discrimination do not succeed and are accordingly dismissed.[138]It is unfortunate that the promotions team did not provide the claimant with a detailed explanation as to why his requested adjustments (RA 1 and 2) could not reasonably be accommodated either when he made his request or following the grievance outcome. It is also unfortunate that the claimant was unwilling to consider and discuss any other adjustments and he instead withdrew from the promotions process. During the course of this hearing and in light of the time gap between evidence and submissions, parties were encouraged to try to resolve their dispute by agreement.[139]In light of this judgment we again urge the promotions team and the claimant to meet with a view to concluding their discussion around the proposed adjustments to the Assessment Centre process (including additional preparation time during working hours) which may apply to a future application for permanent promotion from the rank of Sergeant to that of Inspector. We note the respect, cordiality and professionalism extended by the witnesses to each other and especially on the part of the claimant which we hope will aid any such discussions. M Sutherland