England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE ELIAS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th June 2008

Lord Justice Wall:

1. This is a renewed application by Miss Lorraine Hart for permission to appeal against the decision of the Employment Appeal Tribunal (the EAT)in a constitution comprising the President (Elias J), Mrs R Chapman and Mr D Welch, which, in a reserved judgment given on 6 December 2007, dismissed her appeal from a decision of the Employment Tribunal sitting at Nottingham (the Tribunal)in a decision promulgated on 12 June 2007. Her application for permission to appeal was refused on paper by Hooper LJ on 11 February 2008.
2. The application raises a pure point of law on facts which are not in dispute and I say at the outset that I have considerable sympathy, as did the Tribunal, for the position in which Miss Hart finds herself. The brief facts are that she was engaged by the respondent Chief Constable as a probationary police officer with effect from 14 May 2001. Unfortunately, during the course of her probationary period she suffered a number of injuries and as a consequence suffered a continuing disability, which meant and means that she was and is unable, and would not be able in the future, to perform those duties of a police constable which would have routinely exposed her to confrontational situations requiring restraint, arrest and detention.
3. As a consequence, the respondent terminated her probationary appointment on 1 July 2006. It is common ground and has been throughout that Miss Hart is disabled within the meaning of section 1 and Schedule 1 of the Disability Discrimination Act 1995. It is also common ground that the termination of her probationary employment constituted a detriment to her and that she was subjected to the detriment for a reason relating to her disability. The question for the Tribunal, therefore, was whether or not the action of the respondent in terminating her employment was lawful. The Tribunal determined that this in turn depended upon whether or not the acts of the respondent could be justified under section 3A(1)(b) and 3A(3) of the 1995 Act. Section 3A(1) reads as follows:

"For the purposes of this Part, a person discriminates against a disabled person if:

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified."

Section 3A(3) reads:

"Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

4. Miss Hart's case before the Tribunal and the EAT was that the respondent had a duty to take such steps as were reasonable in all the circumstances of the case to prevent her suffering the detriment of dismissal. She submitted that this could have been done and should have been done by making a reasonable adjustment in her case by offering her a staff post, thereby enabling her to complete her probationary period and thus retain her employment.
5. The Tribunal plainly considered the matter with some care. It had particular regard to regulations 12 and 13 of the Police Regulations 2003, and for the purpose of this judgment I think it is only necessary for me to read regulation 13, which provides that:

"Subject to the provisions of this regulation, during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable.."

6. The Tribunal accepted the submissions made on behalf of the chief constable that successful completion of a period of probation was a statutory requirement, and that it was implicit that the purposes of probation were to ensure that the individual was fitted physically and mentally to perform the duties of a police constable and was likely to become an efficient and well conducted constable. The Tribunal recorded the argument from the claimant that she accepted that, by reason of her disability, she was not able and would not have been able in the foreseeable future to perform those duties of a police constable which would have routinely exposed her to confrontation and situations requiring restraint, arrest and detention. That admission derived from the medical evidence.
7. It was conceded on her behalf, and found to be properly conceded by the Tribunal, that if the Tribunal was against Miss Hart on the issue as to whether or not the respondents were under a duty to make adjustments for the claimant which would have enabled her to complete her probation and to take on employment as a police constable, notwithstanding the fact that she could not be exposed routinely to confrontational situations, then the respondents' reasons for the termination were both material to the circumstances of this particular case and substantial: ie their actions would be justified in accordance with section 3A(1)(b) and 3A(5) of the 1995 Act.
8. After setting out the submissions on both sides, the Tribunal reached its conclusions, after some difficulty, in the following terms. As I say, it expressed a great deal of sympathy with the applicant and was satisfied that if she had not suffered the injuries which she had suffered, she would have been a credit both to herself and to the constabulary and would undoubtedly have qualified as a police officer. However, they went on to say this:

"4.2 Having considered the matter at length we are of the view that the issue is one of principle, that is whether the Respondent can up to the point of certification by the Chief Constable under Regulation 13, refuse to waive the strict requirements of the PDP insofar as they relate to competencies requiring confrontational experience. The facts necessary for us to come to a decision are therefore, in our view, limited. They are confined to the fact that Ms Hart was unable to demonstrate those competencies because of her disability. Further that the Respondent refused to waive the requirements of the PDP so as to enable Ms Hart to complete her probation. The only other relevant facts are those relating to serving officers set out in paragraph 3.16 above.

We believe that those requirements necessitating training and experience in confrontational situations are an irreducible minimum in the training of a police constable. We are persuaded by the analogies that [counsel for the police chief constable] draws with Section 14B of the Act and the example from the Code of Practice. The excerpt from the recruitment documents to which we have referred above i.e. "There is no expectation that people who cannot fulfil a substantial part of the role will be recruited" is also persuasive. We do accept Mr Hand's argument that policing is changing and becoming evermore specialised. Nonetheless we still feel that a certain standard has to be reached and that is the standard required by the PDP and read with Regulations 12 and 13.

4.3 We also accept Mr Hillier's submissions that there are a number of significant differences between a serving police officer and a probationer. Firstly the Chief Constable is not required further to certify a serving officer's fitness once that certificate has been gained at the end of the probation. We further accept that the purpose of the probationary period is to ensure that the probationer is fit to move on to any specialised task for which he is suited.

4.4 Further, as we have seen, Regulation 13 expressly empowers the Chief Constable to terminate the employment of a probationer who, for whatever reason, is considered to be unfit to be confirmed as a police constable, whereas the appointment of a Constable can only be terminated in accordance with a detailed procedure. We have also taken into account in reaching our conclusion Mr Hillier's submission that in determining whether it was reasonable to waive the strict qualification requirements we should take into account that the Respondent was prepared to offer any available staff post as a reasonable adjustment. We find as a fact that this is so…"

They refer to a specific document.

"4.5 We therefore feel bound to come to the conclusion that viewed objectively, that it would not have been a reasonable adjustment to have required the Respondent to waive the strict requirement of the PDP so as to allow Ms Hart to qualify as a constable."

9. As is trite law in every application for permission to appeal to this court from the EAT, the question for me is whether or not the Tribunal arguably made an error of law which the EAT has failed to correct, so that an appeal against the EAT's decision would stand a reasonable prospect of success. I therefore have to look first and foremost at the decision of the Tribunal, which I have read.
10. I now look at the decision of the EAT, which determined that there had been no error of law in the Tribunal's decision. The basis of the appeal to the EAT, as set out in Mr Horan's skeleton argument and as indeed set out in the notice of appeal which he put in in relation to the appeal to the EAT was essentially (and I think I do not do him an injustice by concentrating on it because it is what he concentrated on today) that the Tribunal approached the question over whether the respondent had made reasonable adjustments to be a "general level" question (ie all probationary police officers with a disability) rather than seeing whether the adjustments the claimant contended for were reasonable adjustments in the claimant's case. To that end, he argues that: (1) the Tribunal ignored the factors which were laid out in section 18B(1) of the Act as material; and (2) they approached the matter as a matter of principle rather than as a matter which required particular findings of fact in relation to the claimant and the respondent in this case. They accepted analogies drawn by the respondent between the claimant's case and other sections of the Act which had no bearing on the claimant's case and they preferred what he describes as a "black and white" approach to the claim of the claimant rather than a grey approach: see the decision which I have read.
11. In the EAT, the President, Elias J, giving judgment, summarised the background in paragraphs 8 and 9 which I do not think I need to read, save that they accurately summarise the nature of the circumstances and the concession made by the claimant, properly made, that whatever adjustments were made she would not in the foreseeable future be able to assume the particular duties which I have already identified. He then went on to record the concessions made on the part of the chief constable and to conclude that the issue for the Tribunal was within a narrow compass and simply whether the duty to make reasonable requirements arose in the particular circumstances of the case.
12. The EAT's conclusions themselves are contained in paragraphs 39 to 44 of its decision. It concluded in paragraph 39 that the Tribunal had not erred in law and expanded that conclusion with the following reasoning:

"40. In our judgment, the crucial feature here is that the police authority are in effect playing two different roles. They are the employer, but in determining whether the probationary period has been satisfactorily been completed they are also assessing a standard of competence against national criteria. Regulation 12 of the Police Regulations makes it plain that a constable who has completed satisfactorily a probationary period will be able to transfer to another police force without being required to do a further period of probation. In effect the police authority is confirming a formal status on the officer by representing that he or she has completed the probationary requirements.

41. It is this latter element which lies at the heart of the Chief Constable's submission and which in our view dictated the Tribunal's conclusion. Had this been the case with an employer without the regulatory function, then as Mr Hillier conceded before us, and did not apparently dispute before the Tribunal, it would have been possible for the police authority to have found a job for the claimant performing some of the duties of a serving constable but without carrying out routine confrontational duties. Those functions could have been transferred elsewhere. For this reason we agree with him that it was not necessary for the Tribunal to explore issues such as whether this particular force could function effectively and without undue increased expenditure if an alternative job was found. The police authority was able to find jobs for a disabled officer who had completed his or her probation, and could in principle have done so for someone who had not.

42. The reason why the Chief Constable claimed that it was unreasonable to employ the claimant in this way was that in order to do so he would have had to lower the standard normally expected of a probationer, and as a consequence would have misrepresented her status to others, especially other police authorities. The Tribunal held that objectively viewed, this was a reasonable position for the Chief Constable to have adopted.

43. We see no error of law. We recognise that in an appropriate case the duty to make a reasonable adjustment could extend to adjusting the existing job or finding a suitable alternative job. That much is made plain by the House of Lords in Archibald v Fife Council [2004] ICR 954. But here it was first necessary to treat the claimant as competent to carry out the duties in question, and that was the requirement which the claimant could not meet and the Chief Constable was not willing to modify the standards required so as to represent that she could.

44. We think that the provisions relating to qualifying bodies do provide at least a valuable analogy even if they are not directly applicable. It is reasonable to insist on standards being maintained. The Tribunal was entitled to accept the position of someone who has passed the probationary requirement is different from someone who has not; the former has at some point demonstrated the ability to carry out all the relevant tasks and, as the Tribunal stated, the Chief Constable is not required to certify his or her fitness. That is not the situation with a probationer."

13. This morning Mr Horan has further elaborated the skeleton argument which he put before the court in relation to this case and has, properly, filed a statement pursuant to CPR rule 52 Practice Direction 4.14A. He submits, firstly, that the manner in which the Tribunal went about determining what was a reasonable adjustment was flawed and made no findings and, in particular, did not consider section 18B(1) of the Disability Discrimination Act of 1995. He points out that the language of that section is mandatory and, accordingly, the Tribunal's failure to address it, he submits, is fatal to its reasoning. He submits that the whole ethos of the 1995 Act is that one is to look at the particular facts and the circumstances of each particular individual and therefore he argues the Tribunal's decision is wrong in law.
14. As I indicated earlier in the course of this judgment, I have very considerable sympathy with Miss Hart but it does seem to me that both the Tribunal and the EAT were entitled to draw the distinction which they did between the probationary officer and the officer who has served the probationary period and qualified as a police constable. Were Miss Hart in the latter position I do not think we would be where we are and it is plain from the evidence and the judgments given by both Tribunals that in those circumstances the police not only have been able to make reasonable adjustments but have done so. That is to an officer who has been injured post-qualification.
15. But the view of the Tribunal and the view of the EAT was, as I say, that there was a substantial difference between a probationary officer who had not qualified as a police officer or had not completed probationary training and a qualified police officer and, in my judgment, that distinction is made clear by the police rules cited by both the Tribunal and the EAT. Therefore with great respect to Mr Horan it does not seem to me that section 18B comes properly into play. The decision which the Tribunal and the EAT had to make was indeed one of principle and in my judgment the principle was that there is an irreducible minimum in the qualification for a police officer and that the applicant, through no fault of her own, was unable to achieve it. In those circumstances, as a matter of law, the chief constable was entitled to refuse to lower the standard and confirm Miss Hart as a police constable when she would not in fact be in a position to qualify.
16. In these circumstances it seems to me that Mr Horan's critical submission, namely that the ET and the EAT should have looked at the facts of the particular case in order to determine whether or not a particular adjustment was reasonable, is not one which he is entitled to make, or one which is likely to succeed. Furthermore it seems to me, with great respect, that one does not really get to section 18B despite the mandatory language of the section if the position is as I have indicated, namely that the chief constable was entitled (and was therefore justified) not to lower the standard in relation to probationary training. It therefore follows in my judgment that neither the Tribunal nor the EAT erred in what Mr Horan describes as the "black and white approach". The regulations are in my view quite clear and the chief constable was plainly entitled as a matter of law to act as he did.
17. Mr Horan also argues that the Tribunal and the EAT fell into error when they drew analogies with the qualifying bodies and the statutory codes which apply to them. He accepted that the Act provided that the qualification bodies can have competency standards but he argued they must be proportionate and that in the instant case the decision of the chief constable was disproportionate when alternatives were properly open to him.
18. Hence Mr Horan returns to the proposition that the Tribunal did not give adequate weight to the underlying facts of the case and the individual circumstances of the applicant. Once again with great respect I am unable to accept that argument. It seems to me that when one is discussing the question of a police officer the Tribunal was right to describe what it put as an "irreducible minimum" and the regulations plainly entitled the chief constable to act in the way he did.
19. In my judgment, therefore, the Tribunal did not err in law when it held that the requirements of the regulations which necessitated training and experience in confrontational situations were what it described as an "irreducible minimum" in the training of police constables and it was not therefore open to the respondent to make an adjustment which would have the effect of waiving the strict requirement under the regulations that an individual must be fit physically and mentally to perform the duties of a police constable.
20. The second basis upon which the matter is put is that this is a case of some considerable importance for probationary police officers; that this court should in any event grapple with the issues raised by section 18B and should furthermore entertain the appeal on the grounds that it raises a point of principle of some importance which is worthy of the consideration of this court in any event. I have considered that argument very carefully because I see the force of it but at the same time it does seem to me that the proper regulation of matters of employment is the responsibility of the EAT and this case, having been decided both at Employment Tribunal and Employment Appeal Tribunal level, it does not raise a point of law of sufficient importance or doubt as to make it appropriate for this court to consider it. I also bear in mind that if Miss Hart were to be given permission or were I to adjourn this application to be heard on notice to the respondent the inevitable consequence of a failure on her part would be that she would have to bear the costs of those proceedings and that is a liability which I would be anxious not to impose on her if possible.
21. Moreover, it seems to me that the matter has now been considered carefully by the Tribunal; it has been carefully considered by the EAT. The papers have been read by one Lord Justice who has considered the matter on paper and I have now heard full and careful argument from Mr Horan. I remain unpersuaded that there is here a point of law which it is appropriate for this court to determine and in those circumstances I have come to the conclusion, sympathetic as I am to Miss Hart's personal dilemma, that this application must be refused.

Order: Application refused.