D Cook v Represented by Mr D Jaap - Solicitor Chief Constable of The — 2022

The tribunal heard a preliminary hearing on 23 June 2022 concerning the respondent's applications to strike out, or alternatively seek deposit orders in respect of, two amended disability discrimination claims brought by D Cook against the Chief Constable of the Police Service of Scotland. Leave to amend the ET1 in adjusted April form was granted, and the tribunal then refused both strike out and deposit relief. The judgment did not determine liability on the merits; it held that both claims could proceed to a final hearing.

On the reasonable adjustments claim under s.20(3) Equality Act 2010, the claimant said that the requirement to wear a utility belt and front and back armour placed him at a substantial disadvantage because the belt pressed on his stoma bag, causing discomfort and leakage and contributing to sickness absence from 21 September 2020 until 28 October 2021, when replacement armour was issued. The tribunal accepted that a claim framed only as a failure to consult or consider adjustments would not be relevant, but it treated the clarified case as one in which the claimant alleged that the respondent should earlier have removed the requirement to wear the belt or provided alternative equipment. It held that the pleadings, read generously, disclosed an arguable case and that the issue was fact-sensitive, so evidence was required.

The tribunal also addressed the claimant's earlier non-compliance with a case management order requiring clearer specification of the PCP, the date the duty was engaged, and the step said to remove the disadvantage. It found the response fell short of clear specification, but concluded that striking out would be disproportionate because a fair hearing remained possible, the claimant would be severely prejudiced by losing the claim entirely, and the respondent had now received clarification of the asserted adjustments. In that context, it referred to the burden of proof and reasonable-adjustment authorities including Latif and Noor, and to the overriding objective when considering strike out for non-compliance.

On the direct disability discrimination claim under s.13 Equality Act 2010, the claimant alleged that his Cyber Crime application form had been altered in May 2020 so that the disability box was unticked by someone in his line management chain. The tribunal noted that he was later granted an automatic interview and that the pleaded detriment was the unticking itself, not the interview outcome. It held that, taken with the pleaded surrounding circumstances including the missing or deleted email chain and the narrative advanced in the reasonable adjustments claim, it could not say without hearing evidence that the claim had little or no reasonable prospect of success. Applying the reverse burden provisions and the Stage 1 / Stage 2 approach, it refused both strike out and a deposit order.