E Farrell and J McCaig Mr I Jeffrey v The Chief Constable of the Police Service of Scotland — 2024

The claimant, a disabled police officer with a back injury and modified duties, challenged the 2022 Sergeant-to-Inspector promotions process. The tribunal found the process had been deliberately redesigned away from testing operational competence and towards a competencies-and-values framework. Candidates completed three assessment scenarios; the claimant scored 59 and did not reach the merit line of 60, so he did not progress to substantive promotion.

On indirect discrimination, the tribunal rejected the claimant’s argument that scenario B was a kidnapping/extortion exercise and held that no PCP of requiring a kidnapping-related assessment had been established. It accepted that two of the three scenarios were operational in nature, but held that the claimant had not shown that disabled officers sharing his disability were put at a particular disadvantage. The tribunal preferred evidence that the assessment tested policing knowledge, policy, procedure, law, leadership, behaviours and values, not operational competence, and it found the claimant’s statistical analysis unreliable because it did not identify deployable versus non-deployable officers or show how disabled officers in the relevant pool actually fared.

The tribunal also dismissed the discrimination arising from disability and reasonable adjustments complaints. It accepted the claimant was treated unfavourably when he was not placed in the promotion pool after the merit line was set at 60, but held that this was not because of something arising from disability, because the assessment was not testing the operational experience he said he lacked. It further held that the PCP of two operational scenarios did not place him at a substantial disadvantage compared with non-disabled officers, so the reasonable-adjustments duty was not triggered. In any event, the tribunal considered the operational scenarios and the merit line to be a proportionate means of achieving the legitimate aim of keeping people safe and maintaining an effective police service.

The victimisation complaint concerned Ms McGrath’s decision not to attend future small SETM sub-group meetings if the claimant was present. The tribunal accepted that the claimant’s grievance and tribunal claim were protected acts, and it found detriment where Ms McGrath’s comments cast doubt on the claimant’s integrity and professionalism and where he experienced distress, frustration and anxiety. However, it held that her decision was motivated by her perception of his behaviour at the meeting and the declared conflict of interest, not by the grievance or tribunal proceedings. The tribunal also held the discrimination claims were in time, because the claimant did not know the process had gone against him until the assessment outcome and the refusal of his adjustment request.