ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4113650/2021 Hearing Held at Edinburgh on 26, 27, and February, and and March 2024; Members’ Meeting on March 2024 Employment Judge: M A Macleod Tribunal Member: M Watt Tribunal Member: T Lithgow X v A st and 6 others — 2024

The claimant brought disability discrimination claims arising from a 2021 recruitment exercise for full-time Advocate-Depute. He had previously worked for the Crown, had diagnoses including ADHD, sleep disorder, depression and autism, and was given a guaranteed opportunity to progress in the process because he was a disabled candidate. He was assessed on 28 June 2021, scored 6/12 against a pass mark of 8/12, and was informed on 9 July 2021 that he had not been successful. The tribunal also refused a late application to call Dr Shah and refused the claimant's request to record the hearing on his own device.

On the section 15 claim, the tribunal accepted that some criticisms made of the claimant in the assessment, such as building rapport, eye contact and appearing to listen, could arise in consequence of autism. However, it held that the effective reason for the fail mark was the claimant's performance in the exercise, particularly his failure to elicit key evidence on identification and the assault, and not something arising from disability. It also held that, even if section 15 had been engaged, the assessment process was a proportionate means of achieving the legitimate aim of ensuring that successful applicants had a very high level of prosecutorial advocacy skill for work as an Advocate-Depute.

The section 13 direct discrimination claim failed because the tribunal found no evidence that the panel treated the claimant less favourably because of disability. It held that the relevant treatment was the decision that he had not passed the advocacy assessment, not the earlier sift mark or any alleged failure to interview or appoint him. The tribunal found the panel's decision was based on the standard of his performance and the panel's concerns about his handling of the exercise, and that there was no discriminatory reason or reliable comparator evidence to support the claim.

The section 20/21 reasonable adjustments claim also failed. The tribunal identified the PCP as the requirement to score 8/12 in the advocacy assessment in order to progress, but held that this did not place the claimant at a substantial disadvantage compared with non-disabled candidates on the evidence before it. It rejected the claimant's suggested adjustments, including disapplying criteria relating to rapport, eye contact and language, a repeat assessment, appointment with supervision, or appointment to the appeal court only, as unreasonable or unsupported.

The section 19 indirect discrimination claim failed because the tribunal did not accept that the respondents applied a PCP of actively encouraging word-of-mouth recruitment dependent on close relationships. The section 27 victimisation claim failed because, although the tribunal accepted that the claimant had done protected acts and that not passing the assessment was a detriment, it found that the assessors did not act because of those protected acts. The tribunal therefore dismissed all claims and awarded no remedy.