Mr C Scott v The Chief Constable Of The Police Service Of Scotland: 8002555/2025
JUDGMENT
The tribunal decided to dismiss the claim.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 22 October 2025 alleging he had been discriminated against because of the protected characteristic of disability. The claim set out complaints of a failure to make reasonable adjustments and discrimination arising from disability.[2]The respondent entered a response in which it denied the complaints.[3]The claim was subject to case management and a Note was issued following a preliminary hearing on 2 February 2026 (page 35). The Note clarified the complaints being pursued by the claimant were brought only under section 15 Equality Act, where it was said by the claimant that he was treated unfavourably by the respondent when(a) he was offered (only) either demotion from Police Sergeant to Constable, with consequential pay reduction or dismissal on capability grounds and(b) the respondent failed to provide a Welfare Officer with specialised knowledge of the claimant’s condition and that this unfavourable treatment occurred because of his absence, which arose as a consequence of his disability.[4]The parties agreed at the start of this hearing, that those were the issues to be determined by the tribunal.[5]The respondent’s representative also clarified that the respondent accepted the claimant was a disabled person because of the impairments of dyslexia and anxiety/depression.[6]The respondent’s representative advised the tribunal that the claimant had previously had a claim against the respondent which had been resolved at judicial mediation, following which a COT3 agreement had been prepared. The parties had waived confidentiality and the COT3 agreement was produced in the documents for this hearing because the issue regarding the Welfare Officer was covered by this agreement.[7]The tribunal heard evidence from:• The claimant;• Ms Jennie Macfarlane, Deputy Secretary – West Area, Police Federation Scotland;• Ms Susan Scott, the claimant’s mother;• Ms Gillian Herald, Strategic HR Lead;• Inspector Stewart Kirk, the claimant’s line manager and• Assistant Chief Constable Steve Johnson, Chair of the Duty Modification Panel.[8]The tribunal was referred to a number of documents produced by the respondent and a number of documents produced by the claimant. The tribunal, on the basis of the evidence before it, made the following material findings of fact. Findings in fact[9]The claimant has been a Police Officer for 17 years. He was a Constable for 10/11 years and performed very well in that role.[10]The claimant became a Sergeant in or about 2020. The claimant’s experience was in response policing but in 2021 he moved to Corporate Services division and worked from home. The focus of the claimant’s role was to measure the quantitative benefits of projects: the role was wholly paper-based and the claimant struggled with it.[11]The claimant was diagnosed with Dyslexia in 2023. The claimant had a period of sickness absence during which he received advice regarding measures which would help him at work (for example, read/write software and using noise-reducing headphones to aid concentration).[12]The claimant returned from sickness absence in August 2023 and returned to a supernumerary post in the Criminal Justice department. The claimant moved in May 2024 to Local Policing Support which is based within Corporate Services Division and his line manager was Inspector Stewart Kirk.[13]The claimant had a period of absence from June to September 2024 and then from December 2024 until April 2025. Inspector Kirk kept in touch with the claimant during these periods of absence and held a number of discussions with the claimant whether the role was the best one for him and what options there may be, for example, ill health retirement, alternative roles, reduction in rank to Constable. The subject of a reduction in rank to Constable arose because the claimant had had challenges with anxiety and stress with parts of the role since becoming Sergeant. The claimant had excelled in the role of Constable and the discussion was around whether this would be better for him. The claimant was neutral on the issue, neither supporting nor rejecting the idea.[14]The claimant confirmed in February 2025 that he was fit to return to work albeit not to his current post which he considered to be not suitable for him. Inspector Kirk and Ms Gillian Herald, Strategic HR Lead, met with the claimant and Ms Macfarlane, Federation representative, on 20 February 2025 to discuss obtaining an up-to-date occupational health report and then making a referral to the Duty Modification Panel regarding a role for the claimant. Ms Herald, in advance of that meeting, contacted Superintendent Graham Gallie regarding options for additional support (a Welfare Officer) for the claimant. Ms Herald advised the claimant and Ms Macfarlane of this at the meeting on 20 February and was advised the claimant would welcome a conversation with him.[15]An occupational health report was obtained in April 2025 (Rpage 62). The report noted that since May 2024 the claimant had been working with Corporate Services Division and that this role entailed preparing briefings at executive level, co-ordinating work across each of the 13 local policing divisions, including identifying good practice and policies. The role required being organised and an ability to multi-task and produce written work at short notice. The claimant had struggled with the role which had led to stress and anxiety. The report noted the respondent would be referring the claimant to the Duty Modification Panel to consider whether there was a suitable role for him within the organisation.[16]The report continued to advise that the claimant was fit to return to work slowly and gradually with an 8 – 12 week phased return to an adjusted/alternative role, but that he was not fit at present to return to the full duties of a Police Sergeant with a short phased plan and no management support.[17]The Duty Modifications Panel was established in late 2023/2024 and deals with cases where an officer is seeking an alternative role and/or reasonable adjustments. The Duty Modifications Panel sits across all divisions and can place officers in a suitable division with reasonable adjustments where necessary. Assistant Chief Constable Johnson is the Chair of the Duty Modifications Panel.[18]Inspector Kirk and Ms Herald met with the claimant on 24 April 2025. The purpose of the meeting was to complete the Duty Modifications Panel referral form (Rpage 67). The form gave an overview of the claimant’s current health, the reasonable adjustments required and his skills and experience. The form noted the claimant had ambitions to return to full capacity of being a Sergeant within the organisation however he required a period of supported rehabilitation to work towards that.[19]The form also noted the claimant had pending allegations of gross misconduct and although there were no restrictions had been placed on him, such restrictions would be put in place should he return to work before the disciplinary matter had been dealt with.[20]The Duty Modifications Panel took place on 15 May and Inspector Kirk attended the meeting to present the case. Inspector Kirk was questioned by ACC Johnson regarding what conversations he had had with the claimant as his line manager and what could be done to support him back to work. Inspector Kirk advised there had been conversations regarding roles, ill health retirement and self-demotion to the rank of Constable.[21]ACC Johnson is responsible for the decision of the Duty Modifications Panel. The decision he made was set out at page R75: “following discussion, the Chair confirmed that it was the decision of the Panel that this case be returned to Division. It is noted that the role of Sergeant is not compatible with the officer’s health and anxiety. Divisional Management are advised to meet and discuss fully with the officer, the option to return to a Constable role. This process is to the supported by the relevant People Partner”.[22]Inspector Kirk received the decision of the Panel and contacted the claimant to arrange a meeting to discuss the outcome of the Panel. Inspector Kirk and Ms Herald agreed that the decision may not be what the claimant expected and, for that reason, it was decided Inspector Kirk would read out the decision to the claimant verbatim.[23]Inspector Kirk and Ms Herald met with the claimant and Ms Macfarlane on 20 June and the decision of the Panel was read out. The claimant and Ms Macfarlane were shocked and asked for time to consider. Inspector Kirk and Ms Herald left the room for a time and when they returned Ms Macfarlane asked Ms Herald what would happen if the claimant did not want demotion and Ms Herald responded that it was likely a capability procedure would be followed. The meeting ended and the claimant was given time to consider and discuss the position with Ms Macfarlane.[24]Ms Macfarlane wrote to Ms Herald on 2 July (Cpage 129) in which she made reference to the provisions of the COT3 and in particular the issue of a Welfare Officer being appointed. Ms Macfarlane also made reference to the history of the case in terms of adjustments for the claimant and asked that the matter be reviewed with a view to supporting the claimant’s return to work.[25]The COT 3 agreement (R page 59) provided, at clause 6, that “The respondent agrees to identify and appoint a suitable Welfare Officer who has knowledge or experience of neurodiversity to act as an additional means of support to the claimant during his employment until such time as the claimant is of the view that such additional support is no longer required.”[26]Ms Herald, upon receipt of the letter from Ms Macfarlane, spoke to ACC Johnson who agreed the case should return to the Duty Modifications Panel. Ms Herald confirmed to Ms Macfarlane that the case could return to the Panel and advised a meeting should be arranged to review the referral form. The claimant was, at that time, dealing with the misconduct proceedings and it was not until they concluded in October 2025 that he was fit to meet regarding the referral form.[27]A meeting took place on 4 November 2025 and the referral form for the Duty Modifications Panel was reviewed and updated (Rpage 76). There were two changes to the information on the referral form. The first change was that the misconduct proceedings had been concluded. The claimant was given a final written warning and no restrictions were in place. The second change was that the additional information provided by the claimant was much more positive. The information stated “PS Scott has identified from his experience he is best suited to work in a practical role in the organisation with tangible, achievable tasks as opposed to anything policy or strategic based. PS Scott would like the panel to know that he considers this period of rehabilitation a stepping stone to get him back to full operational duties or wherever the organisation require him to be deployed”.[28]The Duty Modification Panel took place on 14 November 2025. The decision made by ACC Johnson was: “The ACC advised he would be keen to see what opportunities there are in local policing as Colin is wanting to return to a place where they need people. Colin in unable to return to his core post and lives in the West End of Glasgow. The West counterpart should be approached to see what they have where reasonable adjustments can be supported alongside a phased return. The panel advise there is an abundance of places he can be put. Resourcing will consider the portfolios and see what division is able to support. The phased return could be office based with a look to returning as operational”.[29]The record of the Panel also noted that the reason the claimant was spoken to about a reduction in rank was because of the conversations the claimant had had with Inspector Kirk regarding this option as a way to manage his condition. It was noted the option was not one which (in the circumstances) could be imposed on an officer.[30]The respondent’s Resource Planning and Co-ordination unit was responsible for looking for posts which may be suitable for the claimant. The post had to be somewhere where support could be provided to the claimant.[31]A suitable post was identified in April 2026 and the claimant returned to work on 25 May 2026. Ms Herald addressed the issue of additional support for the claimant from a Welfare Officer and contacted Chief Inspector Samantha Harlow-McGuinness regarding this. Ms Herald contacted CI HarlowMcGuinness because she was the Chair of the Disability and Carers Association and had relevant lived experience. She agreed to take on the role and was appointed in April 2026, one month prior to the claimant taking up his new role. Ms Herald advised the claimant of this and facilitated a meeting between the claimant and CI Harlow-McGuinness about getting back to work.[32]The claimant was paid full pay throughout the above period. Credibility and notes on the evidence[33]The tribunal found the respondent’s witnesses to be both credible and reliable and in the two key points of dispute I preferred the evidence of Ms Herald and Inspector Kirk to that of the claimant (for the reasons set out below).[34]The tribunal found Ms Herald to be a credible and reliable witness who gave her evidence in a straightforward manner and endeavoured to answer all of the questions put to her. Ms Herald had good recall of events and was able to explain why certain decisions had been made.[35]The tribunal also found Inspector Kirk to be a credible and reliable witness. Inspector Kirk gave his evidence in a straightforward manner and did not seek to embellish any points or shy away from answering the questions put to him. The tribunal preferred his evidence to that of the claimant regarding the discussions which took place in respect of whether the claimant was in the right role and if not what options may exist. The reasons for preferring Inspector Kirk’s evidence are set out below.[36]The tribunal also found ACC Johnson to be a credible and reliable witness. He very clearly explained the reasons for the decisions made by the Panel and made two points regarding the process: first, that he always envisaged this being a two stage process insofar as the first decision to have a discussion about the option of reducing rank was to be held and would lead to either agreement to do this or rejection of this as an option: in both cases this would have to return to the Duty Modifications Panel. The second point was that the respondent could not in the circumstances impose a reduction in rank.[37]The tribunal treated the claimant’s evidence with a degree of caution arising from the fact the claimant sought to downplay any points not in his favour. The claimant’s evidence was absolute: he insisted the Welfare Officer was to be appointed during his absence to assist with his confidence to do the job. The tribunal considered two points arose from this evidence. The first was that “confidence to do the job” was difficult to understand when the claimant did not know what job/role he would return to when fit. The second was that there was no evidence to suggest a Welfare Officer has any remit to, in effect, counsel an employee regarding their health when not at work.[38]The claimant also insisted he had not discussed a reduction in rank with Inspector Scott. The reasons for preferring Inspector Scott’s evidence are set out below.[39]The tribunal also noted that the claimant did not, in his evidence, refer to the fact of the misconduct allegations or the fact he went off on sickness absence immediately following the allegations, and he did not refer to the other life events (separation from his partner and death of a family member) which occurred at the same time and impacted his health. The claimant’s Federation representative acknowledged, in cross examination, that the misconduct allegations had been a significant source of stress for the claimant. The tribunal was left with the impression that a limited picture was painted by the claimant in his evidence.[40]The tribunal did accept that the claimant had been shocked at the meeting on 20 June: the decision was not what he had been expecting. The tribunal also accepted that following that meeting the claimant felt suicidal, was not dealing with things and had panic attacks. The claimant was supported by his mother and brother during this period.[41]The tribunal found Ms Macfarlane to be a credible witness, however her position regarding the Welfare Officer was informed only by what the claimant told her. Ms Mafarlane, when asked questions about the purpose of the Welfare Officer being appointed, being because the claimant felt managers did not have knowledge regarding neurodiversity, could not respond or offer a view.[42]The tribunal was also surprised that Ms Macfarlane did not challenge the decision of the Duty Modification Panel at the meeting on 20 June with Inspector Kirk and Ms Herald, particularly as Ms Macfarlane is an experienced police officer and Federation representative.[43]The claimant’s mother gave evidence regarding the impact of these events on her son. The tribunal accepted her evidence but balanced it with the fact that her evidence cannot be impartial. Mrs Scott, for example, told the tribunal that her son had, at the 20 June meeting, been told to demote himself or he would be sacked.[44]There were two key areas of dispute in this case. The first related to the interpretation to be attached to the wording of the COT3 regarding the appointment of a Welfare Officer and in particular when that person was to be appointed. The respondent’s representative and the claimant were the only ones at this hearing who had been present at the judicial mediation.[45]The claimant’s evidence was that he understood there was to be something like a buddy system in place to help improve his confidence and assist with his neurodiversity. The claimant accepted that in preparation for his return to work Chief Inspector Samantha Harlow-McGuiness had been appointed. The claimant argued that the Welfare Officer should have been appointed whilst he was absent and this would have assisted with his confidence.[46]The respondent’s position was that the appointment of the Welfare Officer was to assist the claimant at work and therefore there was no requirement to appoint a Welfare Officer until such time as the claimant was fit to return to work and suitable role had been identified for him. Ms Herald gave evidence regarding this point. She was made aware of the COT3 agreement and spoke to her colleagues in the legal team regarding clause 6 and the appointment of a Welfare Officer. Ms Herald understood the Welfare Officer was over and above the support provided by the claimant’s line manager whilst at work. The purpose of the Welfare Officer, who would have knowledge and understanding of neurodiversity, was because the claimant felt that previous managers had not understood his issues.[47]The tribunal noted there was no dispute regarding the fact the claimant and his representative did not raise the issue of a Welfare Officer prior to Ms Macfarlane’s letter to Ms Herald dated 2 July.[48]The tribunal noted that in the occupational health report dated 14 April 2025 (Rpage 62) there was a recommendation that “it is discussed with him any training needs and is supported by a well organised mentor whilst he is settling into work, or a buddy system is arranged”.[49]The tribunal, having had regard to all of the evidence regarding this matter, preferred the evidence of the respondent and concluded the appointment of a Welfare Officer was to support the claimant at work. The claimant spoke of a buddy system or a mentor: these are both arrangements which operate at work. Further, the reason why the claimant wanted additional support was because he felt managers did not understand neurodiversity and his issues. He needed support with this: but these were only issues which arose at work.[50]The second dispute related to whether Inspector Kirk had discussions with the claimant regarding options including a reduction in rank. The claimant’s position was that no such discussions ever took place. Inspector Kirk’s position was that he had a number of discussions with the claimant regarding whether he was in the right role and if not what his options may be. The options included ill health retirement, an alternative role and a reduction in rank to Constable.[51]The tribunal preferred the evidence of Inspector Kirk regarding this matter. Inspector Kirk was a credible and reliable witness and he impressed the tribunal with his approach to the keeping in touch discussions with the claimant. The tribunal formed the view that keeping in touch with the claimant was not merely an obligation under the absence management procedures: Inspector Kirk impressed as a line manager who wanted to understand the issues and find a resolution for the claimant. Inspector Kirk told the tribunal that the claimant had “excelled” in the role of Constable and his challenges with stress and anxiety had arisen since becoming Sergeant. In those circumstances the tribunal accepted Inspector Kirk’s evidence that there was a discussion with the claimant about whether reverting to Constable role would be better for him. Claimant’s submissions[52]Mr Jaap referred the tribunal to the case of Basildon and Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14 where the EAT held there were two distinct steps to the test to be applied by a tribunal in determining whether discrimination arising from disability has occurred. The steps are(i) did the claimant’s disability cause, have the consequence of, or result in “something” and(ii) did the employer treat the claimant unfavourably because of that something. He also referred to Williams v Trustees of Swansea University Pension and Assurance Scheme 2018 UKSC65 where the Supreme Court gave guidance regarding two factual questions to be answered. The first was, what was the relevant treatment and the second was whether it was unfavourable to the claimant.[53]The first complaint brought by the claimant was that the respondent had treated the claimant unfavourably when it offered only either demotion or dismissal on capability grounds. The reason for the unfavourable treatment was the claimant’s disability which caused his absence which in turn led to the referral to the Duty Modification Panel.[54]The second complaint was that the respondent treated the claimant unfavourably when it did not provide a Welfare Officer to the claimant and, in particular, did not assign such an Officer with specialised knowledge of the claimant’s condition. The reason for not providing a Welfare Officer was because of the claimant’s absence: the respondent’s position was that a Welfare Officer did not need to be provided until the claimant returned to work. Mr Jaap invited the tribunal to find a delay of over a year was not proportionate and that the claimant was supposed to have a welfare officer whilst employed, which included the time he was off ill.[55]Mr Jaap made submissions regarding the credibility of the witnesses and invited the tribunal to prefer the evidence of the claimant and his witnesses. Mr Jaap invited the tribunal to find for the claimant and to make an award for injury to feelings of £15,000. Submissions for the respondent[56]Mr Gibson set out the issues to be determined by the tribunal and submitted that should the tribunal find there was unfavourable treatment arising in consequence of disability, the respondent relied on the treatment being a proportionate means of legitimate aim, which was(a) to appropriately manage an officer who was on long term sick leave and unable to return to his substantive role and(b) to provide appropriate support at the appropriate time in agreement with the officer requiring said support.[57]Mr Gibson invited the tribunal to prefer the evidence of the respondent’s witnesses and find the Welfare Officer was to be assigned to the claimant on his return to work. Mr Gibson made reference to the evidence of Ms Herald, who had been briefed by the legal team that she was to seek to identify a suitable person with knowledge or experience of neurodiversity to act as an additional means of support for the claimant when he was to return to work. Mr Gibson noted the claimant had support whilst off sick through the officer who ket in touch and was responsible for his welfare at that time. The nature of what was sought at judicial mediation was support whilst at work. This was an additional support to the claimant whilst at work and until such time as he was of the view that he no longer needed it. Mr Gibson submitted the claimant did not need additional support with his neurodiversity whilst off sick: he was not doing any tasks for the respondent which he might struggle with due to his condition.[58]Mr Gibson submitted the respondent’s position made sense against a background where it would not be known what additional support might look like until it was known what work the claimant was going to be doing. The claimant and his representative made no mention of additional support at the various meetings they had with Inspector Kirk and Ms Herald.[59]Mr Gibson next invited the tribunal to prefer the evidence of Inspector Kirk and find that he did discuss reduction in rank with the claimant. He submitted Inspector Kirk’s evidence made perfect sense given discussions had taken place during a lengthy period of absence and the question of where the claimant’s career in the police was going. Inspector Kirk said all options were discussed: his evidence had been particularly convincing in circumstances where the claimant’s stress and anxiety started on him being promoted to Sergeant. The claimant’s response to these discussions had been to voice concern about how this might look to others.[60]Mr Gibson submitted the tribunal could be certain these discussions took place and the claimant’s blanket denial was simply not credible. Further, it was entirely ridiculous to suggest Inspector Kirk attended the Duty Modification Panel and made up that these conversations took place.[61]Mr Gibson submitted the respondent did not accept that what the claimant was told at the meeting on 20 June 2025 was unfavourable treatment. The issue of self-demotion was something the claimant himself had considered and discussed as an option which he was not negatively predisposed to. It was clearly presented at the meeting as an option to take away and consider: it was not a direction that this is what was going to happen. The claimant, having thought about it, rejected it and a review was requested and took place. It was submitted that being presented with an option which he had previously discussed does not reach the threshold of unfavourable treatment.[62]If the tribunal was not with the respondent on that point, the respondent conceded the treatment was because of something arising in consequence of disability. The burden of proof then shifted to the respondent. The respondent submitted the treatment of the claimant was a proportionate means of achieving a legitimate aim. The legitimate aim was to explore options to enable officers on long-term sickness absence to return to work. It was a proportionate means of achieving that legitimate aim for the Panel to pass the matter back to the Division and ask them to meet with the claimant to “discuss fully with the officer the option to return to a constable role”. This would have secured a return to work if the claimant had been in agreement. It was proportionate because discussions had already taken place between Inspector Kirk and the claimant and that information was before the Panel, and this was not a direction that the claimant was to be returned to the role of Constable. The Duty Modification Panel did not demote the claimant: they simply asked that this option be discussed.[63]Mr Gibson submitted that once the claimant indicated he did not wish to return to the role of Constable, the matter was re-referred to the Duty Modification Panel and a role was identified. This was all part of the proportionate decision making process to achieve the legitimate aim of exploring options to enable officers on lone term sickness absence to return to work.[64]Mr Gibson acknowledged there was a different tone from May 2025 to November 2025 and the reason for that was because there had been a significant change for the claimant in that the gross misconduct issue had been concluded. He was described by his line manager as being “in a different place” and ACC Johnson confirmed this had come across in the presentation and in the additional comments on the referral form.[65]The respondent did not accept that waiting until the claimant was returning to work in an identified role to appoint a Welfare Officer was unfavourable treatment. The agreement was that the respondent would “identify and appoint a suitable Welfare Officer who has knowledge or experience with neurodiversity to act as an additional means of support to the claimant during his employment”. There was discussion at the judicial mediation regarding why additional support was required and it was because the claimant had felt that in his previous role his line manager had not understood the unique challenges faced by people in the workplace who are neurodiverse and he wished someone who would understands these issues and support him in his role. Such a person was identified and in place and had met with the claimant prior to his return to work from sickness absence.[66]Mr Gibson submitted support was not required during the claimant’s absence: that was not what was requested, it was not what was envisaged and not what was agreed. If the tribunal was not with the respondent on that point, the respondent conceded the treatment was because of something arising in consequence of disability. The respondent submitted the treatment of the claimant was a proportionate means of achieving a legitimate aim. The legitimate aim was to provide suitable workplace support to an employee as and when required. To wait until the claimant was in a position to return to work to identify and appoint the welfare officer was a proportionate manes of achieving the legitimate aim. It would not have been proportionate to appoint this welfare officer when it was not known what role the claimant would be doing upon his return to work because it would not be known what sort of support he may require.[67]Mr Gibson invited the tribunal to dismiss the claim. However, if an award for injury to feelings was to be made (and the remedy was now limited to injury to feelings) it was submitted the amount sought by the claimant was grossly inflated. The claimant had given evidence about the effect of the alleged discriminatory treatment; however, it was clear from the facts of this case that a great deal of the stress the claimant was under during this period was not as a consequence of any discriminatory treatment but was as a consequence of his own misconduct. The trigger for the claimant going off on 18 December 2024 was not as a consequence of any alleged discriminatory treatment: it was as a consequence of the claimant being discovered drinking on duty and had the subsequent misconduct hearing hanging over him until October 2025.[68]It was also entirely unclear how additional support would have assisted the claimant until such time as he returned to work. There was little evidence from the claimant on the impact of this upon him: his entire focus of the impact upon him was on the meeting of 20 June 2025. Considerations and decision[69]The tribunal firstly had regard to the terms of section 15 Equality Act, which provides that a person discriminates against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of the disabled person’s disability and the person cannot show that the treatment is a proportionate means of achieving a legitimate aim.[70]The tribunal next had regard to the Equality and Human Rights Commission guidance that “unfavourable” is to be construed in the same way as “disadvantage”. The term “unfavourable” is to be given a broad meaning and there is a relatively low threshold for finding unfavourable treatment. The tribunal should answer two questions:(i) what was the relevant treatment and(ii) was it unfavourable to the claimant.[71]The tribunal also had regard to the authorities to which it was referred by the representatives (as set out above).[72]The first issue to be determined by the tribunal is whether the claimant was treated unfavourably because of something arising in consequence of his disability when he was “offered (only) either demotion from Police Sergeant to Constable (with consequential pay reduction) or dismissal on capability grounds”.[73]The tribunal, in considering this issue, had regard to the decision of the Duty Modification Panel and to the meeting on 20 June 2025 when the claimant was told of the decision. The decision of the Duty Modification Panel was as set out at Rpage 75: “Following discussion, the Chair confirmed that it was the decision of the Panel that this case be returned to Division. It is noted that the role of Sergeant is not compatible with the officer’s health and anxiety. Divisional Management are advised to meet and discuss fully with the officer, the option to return to a Constable role. This process is to be supported by the relevant People Partner.”[74]The tribunal accepted the evidence of Inspector Kirk and Ms Herald, which was not disputed, that at the meeting on 20 June, the decision of the Duty Modification Panel was read out verbatim. Accordingly, what is set out above in italics is what was read out to the claimant and his representative.[75]The tribunal considered the wording of the decision was clear and that there was to be a discussion about the option to return to a Constable role. This could have been a detailed discussion, or a discussion whereby the claimant said he was not interested in considering returning to a Constable role. The tribunal considered the wording of the decision made it clear this was simply another option to be explored and either taken forward or discounted, in the same way as different roles may be identified, considered and either taken forward or discounted.[76]The tribunal accepted the evidence of Inspector Kirk that he had had various discussions with the claimant regarding his absence, his current role and whether that was the best role for him. We accepted those discussions had been wide-ranging in terms of covering all options including ill-health retirement, alternative roles and reducing rank to Constable. We accepted that whilst reducing rank to Constable would not be a common practice, there was sense behind it being raised for discussion by Inspector Kirk in circumstances where the claimant’s stress and anxiety appeared to be linked to him taking on the role of Sergeant.[77]We noted there was no dispute regarding the fact that Ms Macfarlane asked what would happen if the claimant did not agree to a reduction in rank, and Ms Herald replied that “we would likely have to consider a capability procedure”. We took from this evidence that there was no certainty that there would be a capability procedure and there was no reference to, or mention of, dismissal.[78]The tribunal accepted the claimant and his representative were surprised at what they heard. Ms Herald heard the claimant say that he was “gutted”. We noted there was no dispute regarding the fact the claimant understood he had time to consider and consult with his representative.[79]The tribunal decided, having had regard to the above points, that the claimant was not offered only either demotion or dismissal on capability grounds. The claimant, in fact, was offered an opportunity to discuss the option of returning to a Constable role. We considered this decision was supported by the fact the respondent could not, in the circumstances of this case, impose demotion on the claimant. The issue of reduction in rank was one which was wholly within the claimant’s say so.[80]The questions this tribunal must answer are (i) what was the relevant treatment? The answer to that question is that the claimant was advised that Inspector Kirk was to meet with him and fully discuss the option to return to a Constable role. It was clarified that if the claimant did not wish to return to a Constable role, it was likely the respondent would have to consider a capability procedure.[81]The second question is (ii) was it unfavourable to the claimant. The tribunal accepted the claimant was shocked/gutted by the decision read out by Inspector Kirk, but it could not have been clearer that what was being offered was the opportunity to have a discussion about the option of returning to the rank of Constable: this could not have been imposed by the respondent. The tribunal could not accept the claimant’s position that he was told the outcome of the Duty Modification Panel was demotion or dismissal for reasons of capability.[82]The tribunal asked what was the disadvantage to the claimant and, based on the findings of fact, we were satisfied there was no disadvantage to the claimant. We say that because the decision of the Duty Modification Panel was no more than a decision that a discussion was to take place regarding the option of returning to the rank of Constable. This discussion could not be described as disadvantageous in circumstances where the claimant could, and did, reject the option. This was nothing more than part of the process in discussing the options for getting the claimant back to work.[83]The tribunal decided, for these reasons, that the claimant has not established that he was treated unfavourably and the tribunal decided to dismiss the claim for that reason.[84]The tribunal, if it had been satisfied that the claimant had been treated unfavourably, noted the respondent conceded the treatment was because of something arising in consequence of the claimant’s disability, and that was, absence. The tribunal would then have had to consider whether the treatment was a proportionate means of achieving a legitimate aim. The respondent’s legitimate aim was to explore options to enable officers on long term sickness absence to return to work.[85]The tribunal accepted this was a legitimate aim. We next asked whether the treatment was a proportionate means of achieving that aim. The tribunal decided it was proportionate for the Duty Modifications Panel to pass the matter back to the Division and to ask that Inspector Kirk meet with the claimant to fully discuss the option to return to a constable role. This was proportionate in circumstances where Inspector Kirk had already discussed this matter with the claimant, who had not ruled it out. The tribunal accepted the claimant had at no time agreed with the suggestion, but equally he had not rejected the idea. The tribunal considered it proportionate in those circumstances for this matter to be returned to the Division and for the discussions to be concluded one way or another.[86]The evidence of ACC Johnson was illuminating in terms of how he saw matters progressing: he told the tribunal that he always envisaged this case being a two stage process insofar as the discussion regarding reduction in rank had to take place and regardless of the outcome of those discussions the matter would have to return to the Panel. This evidence lent weight not only to what was offered to the claimant, but also to the fact that further discussions were to take place if the option was rejected.[87]The tribunal decided, having had regard to the above, that even if the claimant had established unfavourable treatment, the treatment was a proportionate means of achieving a legitimate aim and the claim would have been dismissed.[88]The second issue to be determined by the tribunal was whether the nonprovision of a Welfare Officer to the claimant and in particular not assigning such Officer with specialised knowledge of the claimant’s condition was unfavourable treatment. There was no dispute regarding the fact the matter of the appointment of a Welfare Officer arose out of discussions at a judicial mediation held to resolve a previous claim. The agreement of the parties was recorded at clause 6 of the COT3 as follows: “The respondent agrees to identify and appoint a suitable Welfare Officer who has knowledge or experience of neurodiversity to act as an additional means of support to the claimant during his employment until such time as the claimant is of the view that such additional support is no longer required.”[89]The issue which arose between the parties related to when the Welfare Officer was to be appointed. The claimant’s position was that the Welfare Officer should be appointed whilst he was off on sickness absence. The claimant felt this would help with his confidence to return to the role. The respondent’s position was that the Welfare Officer was to provide additional support to the claimant when he returned to work because the claimant had expressed concern that previous managers had not understood his condition (neurodiversity).[90]The tribunal preferred the evidence of the respondent regarding this matter and there were a number of reasons for this. First, we considered that if the agreement had been to provide a Welfare Officer during his absence, this would not only have been recorded in the COT 3, but there would also have been some reference regarding the nature of the support to be provided.[91]Second, we had regard to the reason why the claimant asked for additional support (because previous managers had not appreciated the impact of neurodiversity on his role) and we were satisfied this related to a situation where the claimant was at work and needed support to explain difficulties and what adjustments may be required.[92]Third, we were satisfied that until the claimant had identified the role to which he would return, it would not have been possible for additional support to be provided because it would not be known what difficulties may arise or what adjustments may be necessary.[93]Fourth, Ms Herald was the only witness who had spoken to the respondent’s legal team regarding the COT3 agreement. She understood from them that the agreement was for additional support whilst at work, over and above the support from the line manager.[94]Fifth, Ms Herald informed the claimant and Ms Macfarlane, at the meeting on 20 February 2025 that she had had a conversation with Superintendent Gallie regarding the additional support and that he would be in contact. We noted neither the claimant nor his representative suggested this should have been done earlier and in fact neither the claimant nor his representative raised the issue until 2 July.[95]Sixth, the wording of the COT3 agreement referred to additional support for the claimant “during his employment”. These words tended to support the position that the support was to be provided when the claimant returned to work, because it was whilst at work – that is, during his employment – that he required additional support.[96]We concluded, for the above reasons, that the agreement was for the respondent to provide a Welfare Officer as an additional means of support to the claimant whilst at work.[97]We next asked what was the relevant treatment. The tribunal found as a matter of fact (there being no dispute regarding this point) that Chief Inspector Harlow-McGuinness was approached and agreed to take on the role of providing additional support to the claimant. She met with the claimant approximately a month prior to him taking up the role to which he would be returning. The tribunal next asked whether that treatment was unfavourable to the claimant. We concluded the treatment was not unfavourable to the claimant in circumstances where a Welfare Officer was provided to the claimant and such officer had specialised knowledge of the claimant’s condition.[98]The tribunal noted the focus at this hearing was not on whether a Welfare Officer had been provided, but rather when they were provided. We have determined the issue that was before the tribunal (per the agreed issues). We further concluded that even if the unfavourable treatment was said to be not providing the Welfare Officer until the claimant was due to return to work, we would not have found this to be unfavourable treatment. We say that because there was no evidence to suggest what disadvantage there was to the claimant in not being provided with a Welfare Officer whilst off sick. There was, for example, no evidence to suggest he would have returned to work earlier if the Welfare Officer had been appointed earlier.[99]The claimant has failed to establish he was treated unfavourably by the respondent and we decided to dismiss this complaint for that reason.[100]We should state that if we had found the claimant was treated unfavourably, the respondent conceded the treatment was because of something arising in consequence of disability, that is absence. The tribunal would have had to consider whether this treatment was a proportionate means of achieving a legitimate aim. The legitimate aim was to provide suitable workplace support to an employee as and when required. The tribunal accepted it would not have been proportionate to appoint a Welfare Officer when it was not known what the claimant would be doing upon his return to work and it would not be known what sort of additional support the claimant may require.[101]The tribunal acknowledged the claimant had only received a diagnosis of Dyslexia in 2023, but he had received advice regarding adjustments which could assist and he had an occupational health report which also set out the adjustments needed to get him back to work. The claimant told the tribunal he required additional support in terms of his confidence to do the role. The tribunal considered that until the claimant knew the role he would be doing he could not know what support he might need.[102]The claimant did not give any evidence regarding any impact on him from not being provided with additional support whilst absent.[103]The tribunal, had we been required to determine whether the treatment was a proportionate means of achieving a legitimate aim, would have decided there was a legitimate aim and that the treatment was a proportionate means of achieving that aim. The claimant required additional support whilst at work and this is what the respondent provided.[104]The tribunal decided for these reasons to dismiss the claim.