Introduction

The case of Victoria Reid v. Scottish Ministers ([2022] ScotCS CSOH_56) presents a significant judicial review concerning the Scottish Ministers' public appointments policy, particularly its impact on disabled applicants. Victoria Reid, the petitioner, challenged the policy's requirement that applicants commit to two days of tribunal work per month—a stipulation she argued unlawfully discriminated against her under the Equality Act 2010 due to her receipt of Employment Support Allowance (ESA). This commentary delves into the intricacies of the case, the court's reasoning, and the broader legal implications arising from this judgment.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord Erichtet, dismissed Victoria Reid's petition challenging the Scottish Ministers' two days policy for tribunal appointments. The court found that Reid's interpretation of ESA regulations was flawed, particularly her assertion that working more than one day would jeopardize her ESA entitlement. The judgment emphasized that under current ESA regulations, engaging in even one day of tribunal work would result in the loss of ESA for that week, rendering her argument about discrimination ineffective. Consequently, the court upheld the existing policy, determining it did not unlawfully discriminate against disabled applicants as alleged.

Analysis

Precedents Cited

In assessing the legality of the two days policy, the court referenced several key precedents:

• Archibald v Fife Council [2004] UKHL 32: This case established principles regarding indirect discrimination and the necessity for reasonable adjustments to prevent such discrimination under the Equality Act.
• Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265: Further elaborated on the obligations of employers to make reasonable adjustments for disabled employees.
• R (Leighton) v Lord Chancellor [2020] EWHC 336(Admin): Addressed the application of public sector equality duties in recruitment processes.

These precedents were instrumental in shaping the court's understanding of discrimination and reasonable adjustments within public appointment policies.

Legal Reasoning

The court's legal reasoning hinged on the interpretation of ESA regulations and their interplay with public service obligations. Two foundational principles underpinned ESA:

1. Weekly Entitlement: ESA is payable on a weekly basis, as stipulated in the Welfare Reform Act 2007 and the Employment and Support Allowance Regulations 2013.
2. Incompatibility of ESA and Work: Claimants are generally ineligible for ESA if they engage in work, unless specific exemptions apply.

Reid's claim asserted that committing to two days of work would unfairly disqualify her from ESA. However, the court elucidated that even one day of tribunal work would surpass the ESA earnings threshold (£152 per week based on the National Minimum Wage of £9.50), thereby nullifying her ESA entitlement for that week. This critical misapprehension undermined her claims of discrimination, as the policy did not impose additional disadvantages beyond those already inherent in ESA regulations.

Furthermore, the court addressed the absence of equivalent ESA exemptions for Scottish tribunal members compared to their English/UK counterparts, acknowledging the inconsiderate disparity but determining that rectifying this fell outside the immediate scope of Reid's judicial review. The court maintained that policy provisions requiring two days of work were rational and proportionate, aimed at ensuring effective tribunal operations.

Impact

This judgment reinforces the stringent application of ESA regulations in the context of public appointments. It clarifies that public service roles, absent specific exemptions, are incompatible with ESA benefits due to the financial thresholds involved. Moreover, while the court acknowledged the inconsistency in exemptions between different UK jurisdictions, it deferred the rectification to legislative and governmental processes. This decision may deter similar challenges unless accompanied by substantive changes in ESA regulations or public appointment policies that explicitly consider the nuances of disabled applicants' circumstances.

Complex Concepts Simplified

Employment Support Allowance (ESA)

ESA is a UK welfare benefit designed to support individuals with disabilities or health conditions that affect their ability to work. It provides financial assistance based on the claimant's capacity to work and aims to encourage engagement in employment when possible.

Wednesbury Unreasonableness

Originating from the case Associated Provincial Picture Houses v Wednesbury Corporation (1948), Wednesbury unreasonableness is a standard of irrationality used in judicial reviews. A decision is deemed Wednesbury unreasonable if it is so outrageous in its defiance of common sense that no reasonable authority could have made it.

Equality Act 2010

This Act consolidates previous anti-discrimination laws, prohibiting discrimination based on protected characteristics, including disability. It mandates reasonable adjustments by employers and service providers to accommodate individuals with disabilities, ensuring equal opportunities and access.

Conclusion

The dismissal of Victoria Reid's petition underscores the judiciary's role in upholding established welfare regulations and public appointment policies. By clarifying the interaction between ESA and tribunal appointments, the court reinforced the necessity for applicants to fully understand their benefit entitlements and the implications of public service roles on these benefits. While the judgment affirmed the legality of the two days policy, it also highlighted areas where regulatory coherence across UK jurisdictions could be improved to prevent inadvertent discrimination against disabled individuals. Moving forward, policymakers may need to reassess and potentially amend ESA regulations to ensure equitable treatment of tribunal members across all regions.