E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4101350/2022 Held at Dundee on 17, 18, 19, and January 2023 Employment Judge W A Meiklejohn Tribunal Member Ms E Coyle Tribunal Member Ms P Fallow Ms Jill Craig v Represented by: Mr R Russell – Solicitor The Chief Constable of the Police Service of Scotland — 2023

The claimant, a police constable and Response Officer, had a disability described in the evidence as complex PTSD and anxiety linked to a phobia of choking and face-covering use. During the coronavirus pandemic and Operation Talla, she had worked without a face mask in 2020, but in March 2021 management decided that because she could not wear a face covering she could not continue operational duties or enter Police buildings, and she was moved to homeworking and later to work for the Risk and Concern Hub. The tribunal found that she experienced isolation at home and that her mental health was affected by the homeworking arrangement, the nature of the work allocated to her, and her perception that she was being treated in a discriminatory way.

On section 15 EqA 2010, the tribunal held that sending the claimant home and denying her access to Police buildings was unfavourable treatment and that it arose because she could not wear a face covering as a result of her disability. It accepted that the respondent's aim of protecting officers, staff and the public from Covid-19 and maintaining critical policing functions was legitimate. It then held that the treatment was proportionate in the circumstances, relying in particular on the risk created by the Carnoustie building layout, the inability to maintain two-metre distancing at all times, and the operational risk to colleagues and the public.

On section 19 EqA 2010, the tribunal held that the respondent's face-covering policy for officers in Police buildings and on operational duties was a PCP that applied to the claimant and to persons who did not share her disability. It found that the PCP placed disabled officers who could not wear face coverings at a particular disadvantage, and that the claimant herself was put at that disadvantage because she could not comply. However, the tribunal again found the respondent's justification defence made out. On sections 20/21 EqA 2010, it accepted that the PCP put the claimant at a substantial disadvantage, but held that it was not reasonable to require the respondent to let her carry out operational duties or enter and work in a Police station without a face covering.

The tribunal distinguished the later Forfar proposal in March 2022, which was accompanied by a detailed risk assessment and was decided in a different wider Covid context, including lower risk and an announced relaxation of face-covering requirements. All claims were dismissed. The claimant had sought an injury to feelings award at the top of Vento band 3, together with a further uplift, but no award was made because none of the claims succeeded.