Mr M Murray v Represented by: Mr R Milvenan Solicitor Chief Constable Police Service of Scotland — 2022

At a preliminary hearing on 6, 7 and 27 January 2022, Employment Judge L Doherty considered whether Mr M Murray's hearing loss met the definition of disability under s.6 Equality Act 2010 and whether the respondent knew of that disability. The tribunal heard from Mr Murray, Mrs Murray, ENT specialist Dr Newton, and Inspector McInnis. It found the witnesses credible and did not accept the respondent's criticisms of the claimant and Mrs Murray as well founded.

The tribunal found that the claimant's hearing loss had more than a minor or trivial effect on normal day-to-day activities. It accepted that from August 2019 he had difficulty following ordinary conversations, often needed repetition, struggled more where there was background noise, found telephone calls harder in noisy environments, and was further affected when face masks became widespread during the Covid-19 pandemic. Applying the statutory approach and disregarding the improvement brought by hearing aids, it concluded that the impairment had a substantial and long-term adverse effect and that the claimant was disabled from August 2019.

On knowledge, the tribunal accepted that failed hearing tests and the first Optima report did not of themselves establish disability knowledge, because officers can fail tests for temporary reasons and the report recorded no hearing-related problems in normal life. It nonetheless found that from March 2020 the respondent could reasonably have been expected to know of the disability because the claimant was wearing hearing aids at work, had discussed difficulty hearing in a busy office and with masked speakers, and had been moved into the inspector's office to reduce background noise. The judgment therefore resolved the preliminary issues in the claimant's favour, but did not determine liability or any remedy on the underlying discrimination claims.