Ms D Strathern v The Chief Constable of the Police Service of Scotland: 8001252/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001252/2024Venue GlasgowHearing 19, 20 and 21 February 2025
Between
Ms D StrathernClaimantThe Chief Constable of the Police ServiceRespondent
Before
Employment Judge P O’DonnellMs E Strathern for claimantLay Representative for claimantDate 17 March 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claims under the Equality Act 2010 are not well-founded and are hereby dismissed.
REASONS
[1]The claimant has brought complaints of disability discrimination under the Equality Act 2010 in relation to the decision of the respondent to appoint her as a police officer. The respondent resists the claim.
Issues to be determined
[2]Parties had very helpfully cooperated in advance of the hearing to prepare a list of issues which included a number of concessions by the respondent that significantly narrowed the issues to be determined at the hearing. The Tribunal is grateful to parties for the work done to assist the Tribunal in dealing with the case efficiently and proportionately.[3]The respondent concedes that the claimant is a disabled person as defined in s6 of the Equality Act.[4]The respondent concedes that the decision not to recruit the claimant amounted to unfavourable treatment because of something arising in consequence of the claimant’s disability in terms of s15 of the Act. The respondent argues that this decision was a proportionate means of achieving a legitimate aim.[5]In terms of the claim under s19 of the Act, the respondent concedes that they applied a provision, criterion or practice (PCP) that all applicants must submit to a medical assessment involving the submission of a health questionnaire during a consultation with an Occupation Health Adviser. It is accepted by the respondent that they applied this PCP to non-disabled persons and that it would put disabled persons at a particular disadvantage. The respondent argues that this PCP was a proportionate means of achieving a legitimate aim.[6]In relation to the claim regarding reasonable adjustments in terms of ss20 and 21 of the Act, the respondent accepts that the duty was engaged on the basis that they applied the PCP set out above and that this placed the claimant at a substantial disadvantage as compared to those who are not disabled. The respondent argues that they had not fail to comply with the duty. The claimant says that the following matters would have amounted to reasonable adjustments:a. Carrying out an independent psychiatric review of the claimant’s mental health.b. Allowing the claimant time to contact her own psychiatrist.c. Allowing the claimant entry to the 12 week training course before making a final decision on her fitness for the role.
Evidence
[7]The Tribunal heard evidence from the following witnesses:a. The claimant.b. Dr Monica Dobrowlska (MD) – the respondent’s occupational health adviser.c. Alan Mulholland (AM) – the chief inspector in charge of the respondent’s recruitment process.[8]There was an agreed bundle of documents prepared by the parties. A reference to a page number below is a reference to a page in that bundle.[9]This was not a case where the relevant facts were in any real dispute. There was a difference between the claimant and MD as to what was said at the first consultation but nothing turns on this. The Tribunal considers that all the witnesses sought to give evidence truthfully to the best of their recollection. Findings in fact[10]The Tribunal made the following relevant findings in fact.[11]The claimant applied to the respondent to be appointed to the role of police constable in August 2023.[12]To be appointed to the Police Service, a candidate must meet the criteria set out at Regulation 6 of the Police Service of Scotland Regulations 2013 (hereinafter referred to as the “Police Service Regulations”). The Police Service Regulations are secondary legislation enacted by the Scottish Parliament and carry the force of law. There are a number of qualifying criteria at Regulation 6 and, for the purposes of this case, the relevant criterion is at Regulation 6(1)(c) which provides that a candidate must: “be certified by a registered medical practitioner approved by the Authority to be fitted both physically and mentally to perform the duties on which that candidate will be employed after appointment;”[13]The requirement to be mentally fit for the role is included in the criteria because of the stresses which a police constable will experience in carrying out their duties. They will experience accidents and crimes which will include violence, injury and death and require mental resilience to be able to deal with this.[14]There are a number of stages in the recruitment process including entrance exams, a fitness test, an assessment day involving group exercises and individual interviews as well as drug testing. In the present case, the claimant successfully navigated these stages of the process and was given a conditional offer of appointment (p55). One of the conditions which the claimant had to meet was the requirement to be certified by an approved medical practitioner physically and mentally fit for the role.[15]The respondent contracts with Optima to undertake the certification of candidates. They are the approved medical practitioners for the purposes of this process and are referred to as “force medical advisers”.[16]All candidates must complete a health questionnaire in which they provide a complete history of their physical and mental health. This questionnaire must be counter-signed by a candidate’s GP as being accurate.[17]A copy of the questionnaire completed by the claimant could not be located by either party but it was common ground that she completed such a questionnaire. It is also not in dispute that the claimant disclosed that she had had a history of depression and anxiety since age 17 and that, at the time of her application, she was weaning herself off anti-depressant medication as well as recently having ceased taking anti-anxiety medication.[18]The process operated by Optima is that an occupation health nurse carries out the initial assessment. The claimant attended this assessment on 6 November 2023 and it involved tests of her hearing, blood pressure and balance. The nurse reviewed the claimant’s questionnaire and noted the history of depression and anxiety. The nurse explained that the claimant would need to be referred to a doctor within Optima. The claimant completed a mandate allowing Optima to obtain further information.[19]The nurse issued what is described as a “recruitment fit slip” (p91) dated 6 November 2023 indicating that the claimant’s certification would be deferred for 6-8 weeks once further information was obtained. The fit slip is a proforma document which Optima provides to the respondent confirming the position in relation to a candidate.[20]On the same day, the nurse sent a letter (pp57-60) to the claimant’s GP asking them to provide a report about the claimant’s mental health.[21]The claimant’s GP replied by letter dated 10 November 2023 (p62). This letter confirmed the claimant’s history with depression and anxiety and that she was weaning off anti-depressants gradually due to previous withdrawal symptoms when coming off medication. The GP confirmed that the claimant’s mental health had been good for some years.[22]The claimant’s GP also confirmed that the claimant had attended psychiatry and enclosed letters from the psychiatrist (pp63-84), the last of which was dated 6 June 2023.[23]The claimant met with a doctor from Optima, Dr Dobrowolska (MD) on 5 February 2024 for a further assessment. MD had reviewed the information received from the claimant’s GP before meeting the claimant.[24]MD’s contemporaneous note (pp86-87) records at p87 that she considered that the claimant was likely fit for the role but noted that the claimant had been under psychiatry for a long time and had not been discharged by them (the claimant had told MD that she had decided to cease attending). MD considered that more information was needed from the psychiatrist and the claimant’s application should be deferred until she had been off medication for a lengthy period and still well. MD issued a fit slip (p85) dated 5 February 2024 deferring the claimant’s assessment until more information had been obtained.[25]A letter to the claimant dated 5 February 2024 (p88) was drafted explaining this position. However, for reasons which no-one could identify, this letter was not sent and the claimant only had sight of it when she received a reply to a subject access request.[26]MD wrote to the claimant’s psychiatrist by letter dated 5 February 2024 (p89) asking for a report on the claimant’s mental health. The psychiatrist replied by letter dated 20 February 2024 (p92) declining to provide a report because the psychiatrist considered that doing so might affect the therapeutic relationship. A suggestion was made that an independent report could be obtained.[27]MD had a concern about the reference to a therapeutic relationship in circumstances where the claimant had indicated that this was at an end. MD sought opinions from her colleagues (without disclosing the claimant’s identity). The full email exchange is at pp132-143 with MD summarising the views expressed in a contemporaneous note on 20 March 2024 at p95. A range of views were expressed with some doctors considering the claimant being unfit for the role at all whilst others considered that a period of deferment was needed for the claimant to be off her medication for a period of time and remain well. One view was that the psychiatrist did not think the claimant was fit for the role but did not want to say so.[28]MD decided that the claimant was not fit for the role of police constable at that time and that she should be deferred for a period of two years with a letter from her psychiatrist required at that time. In respect of the two year period, this was to be a period when the claimant was off medication so that her mental health without medication could be evidenced.[29]A fit slip dated 20 March 2024 (p94) was issued to the respondent stating that the claimant was not fit for the role with the caveat that her application could be reconsidered in two years’ time.[30]A letter of the same date was issued to the claimant (pp96-97) setting out MD’s conclusion and the reasons for it. Unfortunately, for reasons which have not been identified, the address on the letter was that of the claimant’s GP and not her own address. The claimant only had sight of this letter in the response to the claimant’s subject access request.[31]The first that the claimant knew that her application to the respondent had been refused was when she received an email dated 18 April 2024 (p98) confirming that she had not been successful and that her application would not progress further. The email is standard wording with no detail given as to why her application had been unsuccessful; the explanation would have been contained in the letter from MD if it had been addressed correctly.[32]The claimant sought to appeal MD’s decision and also complained to the respondent. These did not result in any change to either MD’s opinion or the respondent’s decision.[33]As part of her attempt to change the outcome, the claimant contacted her psychiatrist to find out more about why they did not provide a report and suggested an independent report. By letter dated 29 May 2024 (p122), the psychiatrist explained that they do not supply such reports which can affect the therapeutic relationship and preparing such reports does not come under their NHS-contracted work. The letter goes on to say that the refusal to provide a report does not imply any judgment about someone’s health. Submissions[34]Both parties produced written submissions and supplemented these orally. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant Law
[35]Disability is one of the protected characteristics covered by the Equality Act 2010 and section 6 of the Act defines disability as a physical or mental condition which has long-term, substantial adverse effects on a person’s dayto-day living activities.[36]The definition of discrimination arising from disability in the 2010 Act is as follows: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[37]The definition of indirect discrimination is found at s19 of the Equality Act:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[38]In terms of justification (in respect of both indirect discrimination and discrimination arising from disability), the EAT in MacCulloch v ICI [2008] IRLR 846 set out four principles to be applied by the Tribunal. These have since been approved by the Court of Appeal in Lockwood v DWP [2013] IRLR 941: “(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways [2005] IRLR 862 at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL) [1987] IRLR 26 per Lord Keith of Kinkel at pp.30–31. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.”[39]The duty to make reasonable adjustments is set out in s20 of the Equality Act with s21 making a breach of the duty an unlawful act. The relevant provisions of s20 are: 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice (PCP) 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.”[40]In relation to the duty to make adjustments, the degree to which any adjustment would overcome the disadvantage to the claimant is relevant to whether the adjustment is reasonable (HM Prison Service v Johnson [2007] IRLR 951). Further, the duty is intended to integrate disabled people into the workplace and this is also relevant to whether any adjustment is reasonable (O'Hanlon v Revenue and Customs Comrs [2007] IRLR 404).[41]The Tribunal considers that it would be useful to set out some preliminary comments about what issues it is deciding and, more importantly, what it is not deciding.[42]The reason for this is that it was clear to the Tribunal that the claimant did not agree with the medical opinion provided to the respondent and that this was a particular driving force in her case.[43]However, as the Tribunal explained during the hearing, the Tribunal will not be unpicking, or assessing the validity of, Dr Dobrowolska’s opinion. The fundamental reason for this is that it is not this opinion which is said to be an act of discrimination but, rather, the respondent’s decision not to appoint the claimant and their practice of requiring a medical assessment of all candidates. The Tribunal is, therefore, not tasked with carrying out some sort of review of the medical opinion received by the respondent.[44]It was also clear that the claimant had issues with the process followed in carrying out the medical assessment, in particular various communication failures undoubtedly caused her concern. It was quite clear that there were such failures given that correspondence which the claimant should have received were sent to her GP in error. However, such failures have no relevance to the issues to be determined in this case; they may have been relevant if the Tribunal was having to draw inferences of discrimination from the primary facts in the case but where the Tribunal is considering the test for objective justification such matters have no real bearing.[45]With those comments having been made, the Tribunal turns now to the issues to be determined and will deal first with the issue of objective justification. This is the defence relied on by the respondent in respect of the claims of discrimination arising from disability and indirect disability discrimination.[46]The respondent relies on the same aim in respect of both claims, that is, to ensure that, before they are appointed, police constables are medically fit to perform the role for the purpose of ensuring that their colleagues and the public are not put at risk.[47]The Tribunal considers that this is clearly a legitimate aim given the duties carried out by police constables. They will regularly face physical demands beyond those faced in ordinary life and will also be exposed to stressful situations involving people in crisis as well as violence, injury and death. It almost goes without saying that the respondent needs to ensure that its officers are fit to deal with such matters. Indeed, the claimant does not seek to suggest that it is not a legitimate aim and her arguments are focussed on the question of proportionality.[48]Turning to the issue of proportionality, there is a fundamental issue which applies to the respondent which does not apply to most other employers. They are governed by legislation, the Police Service Regulations, and so are constrained by law as to what decisions they can make. In particular, regulation 6(1)(c) states that any candidate must be certified by a registered medical practitioner as physically and mentally fit to perform the duties of police constable. To put it another way, the respondent would be acting unlawfully if they appointed someone who was not certified as fit to perform the duties of police constable.[49]In respect of the claim of discrimination arising from disability which is based on the decision not to appoint the claimant, this limits the scope for any alternatives that would achieve the aim and avoid the discriminatory effect on the claimant. In the absence of medical certification, the respondent simply cannot, as a matter of law, appoint the claimant to the role. Once the decision is made by the force medical adviser that the claimant was not fit at that time, there is no other choice open to the respondent but to refuse to appoint her.[50]As noted above, the Tribunal is not assessing the validity of the medical opinion provided in respect of the claimant. This is not the issue to be determined. In any event, even if it had been an issue to be determined, the Tribunal does not carry out its own medical assessment, it would only assess whether the opinion was an act of discrimination.[51]The decision not to appoint the claimant is, in these circumstances, a proportionate means of achieving the respondent’s legitimate aim. It corresponds to a real need on the part of the respondent and there were no alternatives which would achieve this aim whilst avoiding the discriminatory effect on the claimant. Indeed, there were no alternatives which could achieve the aim given the legislation under which the respondent operates.[52]Similarly, in respect of the indirect disability discrimination claim, it is difficult to see how the respondent could achieve its legitimate aim without carrying out some sort of assessment of candidates. Again, the law requires an approved medical practitioner to certify a candidate as medically fit and so some form of assessment is required.[53]The claimant’s complaint is about the method of assessment. In effect, she says that the use of a questionnaire completed by the candidate would potentially allow for people to fail to disclose conditions that might rule them out as a candidate for police constable. However, this ignores the fact that the questionnaire must be counter-signed by the candidate’s GP and they would be able to identify that the content was misleading or incomplete.[54]The claimant argues that instead of using a questionnaire and only carrying out further investigations when the questionnaire discloses something which requires that, all candidates should have a telephone consultation with a force medical adviser.[55]However, this alternative would not have made any difference to the claimant or to any other disabled person who was disadvantaged by the PCP. The claimant or anyone else who was found to be unfit for the role of police constable would have been in the exact same position if the proposed alternative was applied. Even if those who were not in the disadvantage group had to have a telephone consultation, the claimant and those in the disadvantaged group would still have gone through the same process as herself, an opinion would have been provided by Dr Dobrowolska or another force medical adviser and the same decision would have been made by the respondent not to appoint anyone who was not certified as fit. This alternative advanced by the claimant would not have avoided any discriminatory effect on her or anyone else in the disadvantaged group.[56]The claimant also raises issues about the degree to which the medical assessment was based on actual risks and the likelihood of those risks. The Tribunal considers that this is an attempt to unpick the medical opinion of Dr Dobrowolska and, as set out above, the validity of the medical opinion is not something which the Tribunal is determining.[57]The other alternatives relied on by the claimant are the adjustments on which the claimant relies in her reasonable adjustment claim. The Tribunal will deal with these in more detail below but, for the moment, suffice it to say that, for the reasons below, the Tribunal does not consider that these alternatives would have avoided any discriminatory effect on the claimant or anyone else in the disadvantaged group whilst still achieving the respondent’s legitimate aim.[58]In these circumstances, the Tribunal considers that the requirement for a medical assessment by way of a questionnaire during a telephone consultation was a proportionate means of achieving the respondent’s legitimate aim. There was a real need on the part of the respondent to assess the medical fitness of candidates in order to comply with the legislation under which the respondent operates and there was no alternative which would have achieved this aim whilst avoiding the discriminatory effect on the claimant.[59]For all these reasons, the Tribunal is satisfied that the respondent has established that its decision not to appoint the claimant and the PCP that candidates have to submit to a medical assessment involving a health questionnaire during a telephone consultation were proportionate means of achieving a legitimate aim.[60]Turning now to the claim of a breach of the duty to make reasonable adjustments, the respondent having conceded that the duty was engaged, the issue for the Tribunal is whether the respondent had complied with the duty.[61]The respondent does not argue that there were adjustments made by them and so the Tribunal is assessing whether there were any adjustments which were reasonable for the respondent to have made which would have overcome any disadvantage to the claimant.[62]As with the other claims, the respondent is constrained in what they can do as a matter of law and the Tribunal bears this in mind when determining what adjustments could be made.[63]The first two adjustments suggested by the claimant (that is, obtaining an independent report or giving the claimant time to obtain a report from her own psychiatrist) can be dealt with together as they are, in effect, an argument that the respondent should have obtained a second opinion.[64]The difficulty for the claimant is that there is no scope for the respondent to substitute the opinion of another medical practitioner for that of the force medical adviser. The Police Service Regulations require, as a matter of law, for the medical certification to be done by an approved medical practitioner. The respondent would, therefore, be acting unlawfully if they substituted any second opinion for that of the force medical adviser. Such an adjustment cannot be reasonable if it would cause the respondent to act unlawfully.[65]At best, any such second opinion would be an additional piece of information for the force medical adviser to take into account in forming their own opinion. There was no evidence before the Tribunal that, if such opinions had been obtained, Dr Dobrowolska would have come to any different opinion. The Tribunal cannot, therefore, conclude that the adjustment would have avoided the disadvantage to the claimant.[66]In respect of the suggestion that the respondent should have given the claimant time to obtain a report from her own psychiatrist, the claimant did contact her psychiatrist and they gave her the same answer as they gave to the force medical adviser that they would not provide such a report. In these circumstances, the Tribunal considers that even if the claimant had been given time to seek such a report then no such report would have been obtained. This adjustment would, therefore, have achieved nothing in terms of avoiding any disadvantage to the claimant and so would not be reasonable.[67]As for the suggestion of an independent report, there was no evidence before the Tribunal as to what any such report would have said and what effect it would have had on Dr Dobrowolska’s opinion. The Tribunal cannot, therefore, conclude that this would have avoided any disadvantage to the claimant.[68]The Tribunal pauses for a moment to comment on the issue of an “independent” report. Whilst Optima was contracted by the respondent to provide the assessment of candidates, the Tribunal considers that this was an independent medical opinion. There was no suggestion whatsoever that Dr Dobrowolska (or any other force medical adviser) is instructed by the respondent to reach any particular conclusion and the respondent is satisfied that her opinion was her own professional opinion reached independently of the respondent on the basis of the information available to her.[69]The third, and final, adjustment suggested by the claimant was that she should have been allowed to attend the training course for police constables before a final decision was made on her medical fitness. This adjustment, again, runs into the insurmountable problem, for the claimant, of the Police Service Regulations. It is not the case that someone is appointed as a police constable after completing the training course but, rather, they are appointed as a police constable and are then sent on the course (after spending a week at their division). In order for someone to be lawfully appointed as a police constable, they must be certified as medically fit. If this adjustment was made then the respondent would be acting unlawfully by appointing the claimant (or anyone else) when she had not been certified as medically fit. As set out above, the Tribunal considers that an adjustment cannot be reasonable if the respondent would be acting unlawfully in making that adjustment.[70]No other adjustments were suggested by the claimant and there was nothing on the face of the evidence from which the Tribunal could conclude there was any other adjustment which could have been made that would have avoided the disadvantage to the claimant.[71]In these circumstances, the Tribunal considers that the respondent did not breach the duty to make reasonable adjustments as there were no adjustments which it was reasonable for them to make that would have avoided the disadvantage to the claimant.[72]The respondent having made out their objective justification defence in respect of the claims of discrimination arising from disability and indirect disability discrimination, and there being no breach of the duty to make reasonable adjustment the Tribunal finds that the claims under the Equality Act are not well-founded and are hereby dismissed.