Ms L Aberdein v The Chief Constable of the Police Service of Scotland: S/4108552/2018
| Judgment Date | 20 March 2019 |
| Citation | S/4108552/2018 |
| Published date | 27 March 2019 |
| Date | 20 March 2019 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: S/4108552/2018
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Hearing Held at Dundee on 23, 24, 28 and 29 January 2019, deliberation days
on 31 January 2019 and 1 March 2019
Employment Judge: Mr A Kemp
Members: Ms J Torbet
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Dr R A’Brook
Ms L Aberdein Claimant
Represented by:
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Mr C Edward
Advocate
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The Chief Constable of the Respondent
Police Service of Scotland Represented by:
Mrs S Gallagher
Solicitor
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
1. The unanimous decision of the Tribunal is that
(i) the Claimant suffered a detriment by unlawful discrimination
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arising out of disability under section 15 of the Equality Act 2010
in respect of the introduction of part of an informal Action Plan for
the period 26 September 2017 to 26 November 2017 under which
the Claimant was required to work until 1am when on late shift and
undertake Dundee Safe duties when doing so
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S/4108552/2018 Page 2
(ii) the Respondent failed to maintain a reasonable adjustment that
they had made for the Claimant not to work beyond 11pm by the
introduction of part of an informal Action Plan for the period
26 September 2017 to 26 November 2017 under which the Claimant
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was required to work until 1am when on late shift and undertake
Dundee Safe duties when doing so, in contravention of sections 20
and 21 of the Equality Act 2010
(iii) there was no dismissal of the Claimant in terms of section 39 of
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the Equality Act 2010 and the claim therefor is dismissed
(iv) the Claims made under sections 13 and 26 of the Equality Act 2010
are not successful and are dismissed.
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2. The issue of remedy will be determined at a separate hearing on a date
to be fixed.
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REASONS
Introduction
1. This Hearing had been fixed as a Final Hearing initially, but by email dated
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18 January 2019 it had been confirmed that it would be in relation to liability
only, with remedy to be determined if necessary at a later date.
2. On the day before the hearing, the Tribunal had informed the parties by email,
and Employment Judge Kemp repeated at the commencement of the
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Hearing, that he had been a partner at Clyde and Co (Scotland) LLP, and that
at least two of his partners had acted for the Respondent. The parties
indicated that they were content with his acting as a Judge in the case. It was
S/4108552/2018 Page 3
also disclosed to the parties at the commencement of the Hearing that one of
the lay members, Dr A’Brook, had a family member serving a period of
imprisonment, and the parties again confirmed that no objection was taken to
his sitting on the case.
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3. The Respondent admitted that the Claimant had a disability under the
Equality Act 2010.
4. Evidence was given by the Claimant, and two witnesses being her partner
Police Constable Steven Mackay and Police Federation representative Police
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Constable Gordon Forsyth. For the Respondent evidence was given by
Inspector Kerry Lynch, Mrs Leigh Wilson, and Sergeant Alex Munro.
5. The parties had prepared a bundle of documents, most but not all of which
were spoken to in evidence.
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Issues
6. The parties had agreed between them the issues in the case as follows:
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“Liability”
a) Was the Claimant directly discriminated against by the Respondent
(section 13 of the Equality Act 2010)? In that respect:
i Firstly, did putting the Claimant on an informal Action Plan amount
to less favourable treatment compared to a real or hypothetical
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comparator without a disability?
ii. If so, did the Respondent take those steps because of her disability?
iii. Secondly, did the treatment alleged in paragraph 15 of the
Claimant’s paper apart amount to less favourable treatment
compared to a real or hypothetical comparator without a disability?
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iv. If so, were those remarks made as a result of the Claimant’s
disability?
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