Claimant v The Scottish Ministers — 2019

The claimant applied for a prison officer role with the Scottish Prison Service. The respondent accepted that she was disabled by reason of multiple sclerosis. She progressed through the recruitment stages, including interview and fitness testing, and received a conditional offer subject to pre-employment checks, including an occupational health assessment by Optima.

Optima initially sought further medical evidence and later reported to the respondent that the claimant was unfit for the proposed role. The respondent then did not progress her application. The claimant appealed, and the appeal was later successful, but she decided not to continue with the application because she was concerned about attending another medical assessment with Optima.

The tribunal found that the relevant comparator was a candidate without the claimant's disability who had reached the same stage, received a conditional offer, attended the same type of occupational health assessment, and been assessed by Optima as unfit for the role. It accepted the respondent's evidence that any candidate assessed by Optima as unfit would not have progressed. The tribunal was not satisfied that the respondent decided not to progress the application because the claimant had disclosed a disability, and dismissed the direct discrimination claim.