A Kemp Members: Ms J Torbet Dr R A’Brook Ms L Aberdein v Represented by:15 Mr C Edward Advocate The Chief Constable of the — 2019

Ms Lana Aberdein was a police constable with anxiety and depression, which the respondent accepted amounted to a disability. After a panic/anxiety episode in 2016 she moved from response duties to a community support role, and occupational health and the Force Medical Adviser recommended adjustments to avoid night work and, later, work beyond 11pm because of the effect of sleep disruption on her mental health.

The tribunal found that those earlier adjustments had worked for a period, but that the position changed in 2017. Following a case conference and an informal Action Plan, a second informal Action Plan was introduced for 26 September 2017 to 26 November 2017. That plan required the claimant, when on late shift, to work to 1am on Friday and Saturday Dundee Safe duties and to take a more active response role. The tribunal accepted that the respondent had legitimate aims of maintaining public service and operational readiness, but it held that the 1am Dundee Safe element was unfavourable treatment because of disability and was not a proportionate means of achieving those aims.

On reasonable adjustments, the tribunal held that the relevant PCP was the requirement to work to 1am on Dundee Safe duties. It found that this placed the claimant at a substantial disadvantage because sleep disruption worsened her anxiety and depression, and that the respondent did not take reasonable steps to remove that disadvantage. In particular, the tribunal was concerned that the respondent did not fully seek or communicate medical advice about the revised arrangement and did not manage the Dundee Safe duties more closely.

The section 13 direct discrimination claim failed. The tribunal did not accept that the second informal Action Plan amounted to less favourable treatment compared with a proper hypothetical comparator, and it did not accept the claimant's case that Sergeant Munro had made the alleged discriminatory remarks. It found that one comment about medication had been made in a supportive context, but not in a way that supported the pleaded direct discrimination or harassment allegations.

The harassment claim under section 26 also failed because the alleged remarks were not proved. The tribunal therefore did not need to decide whether those complaints were out of time or whether time should be extended on a just and equitable basis. The dismissal claim under section 39 was also dismissed: the tribunal found that the claimant resigned on 15 April 2018 because of performance concerns, her belief that Sergeant Munro was being unfair, and her concern that the respondent was seeking to remove her, rather than because of unlawful discrimination. It also found a significant delay before resignation and no last straw. Remedy was left to a separate hearing.