Member W Canning Tribunal Member P Fallow Mr Peter Kennedy v Hillcrest Homes (Scotland) Limited — 2020

The claimant applied for a Housing Officer post based in Aberdeen. He indicated that he was disabled on the application form and completed the disability-details box. The respondent shortlisted 11 of the 40 applications for a second check, and Ms Nicoll then decided that the claimant did not meet the essential criteria, particularly the criteria requiring a broad range of operational housing experience, working knowledge of housing legislation, and a track record of delivering tenancy services, so he was not invited to interview.

The tribunal held that section 60 of the Equality Act 2010 did not create a standalone claim. It accepted the respondent's evidence that the disability and disability-details questions were included so the respondent could identify whether reasonable adjustments were needed and operate its guaranteed interview scheme. On that basis the tribunal found that the burden of proof did not transfer under section 60(5); even if it had, the tribunal accepted that the reason the claimant was not interviewed was Ms Nicoll's view, based on the application form, that he did not meet the essential criteria. The tribunal also noted that one shortlisted applicant had indicated a disability and that all interviewees met the essential criteria.

The direct discrimination claim under section 13 failed because the proper comparator was a hypothetical non-disabled applicant with the claimant's level of housing experience, and there was no evidence that such a person would have been treated differently. The indirect discrimination claim under section 19 failed because the claimant did not identify any group disadvantage from the form questions, and the tribunal found the questions created an advantage for disabled applicants by supporting the guaranteed interview scheme; if proportionality had been reached, the tribunal said the questions would have been proportionate. The reasonable adjustments claim failed because the respondent did not know, and could not reasonably be expected to know, of any specific disadvantage arising from the claimant's disability, so the duty to make adjustments did not arise. The claim was dismissed in full and no unlawful discrimination was found.