United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B COOPER (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Landore Court 51 Charles Street Cardiff CF10 2GD
For the Respondent	MS S GARNER (of Counsel) Instructed by: West Mercia Constabulary Legal Services Hindlip Hall Hindlip Worcester WR3 8SP


 


SUMMARY

DISABILITY DISCRIMINATION

Post employment

Reasonable adjustments

Whether re-appointment of a probationer P.C. (akin to reinstatement/re-engagement) by way of a reasonable adjustment under s16A Disability Discrimination Act was outside the powers of the chief constable in light of the Police Act and Regulations made thereunder. The Employment Tribunal held that it was; EAT disagreed. Appeal by Claimant allowed.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties before the Shrewsbury Employment Tribunal, as we shall describe them, were Sarah Hinsley, Claimant, and the Chief Constable of West Mercia Constabulary, Respondent. The Claimant's material complaint before the Tribunal was one of post- termination disability discrimination in the form of a failure to make a reasonable adjustment contrary to section 16A(4) of the Disability Discrimination Act 1995, as amended (DDA).
2. The Tribunal, by a judgment with Reasons promulgated on 28 January 2010, dismissed her claim. Against that judgment the Claimant appealed by a notice lodged on 9 March. On the paper sift by an order seal dated 14 April HHJ McMullen QC directed that the appeal should proceed to this full hearing.
3. The critical issue in the appeal we think is whether, as the Tribunal held, particularly at paragraphs 50, 51, 53, 54, 57 and 59 of their Reasons, the Respondent had no power under the relevant statutory provisions to re-appoint the Claimant following her resignation from the force effective on 17 January 2007 without her first undergoing the normal recruitment process identified in Regulation 10 of the Police Regulations 2003 (the 2003 Regulations).

The Facts

4. The Claimant underwent the usual recruitment process before being accepted as a probationary police officer in the West Mercia Police. She began her training on 20 February 2006. New recruits are required to complete a probationary period of not less than two years. The Claimant's progress was not without some difficulties. In June 2006 she was diagnosed with thyrotoxicosis and placed on medication. In September 2006 she failed a fitness test but the Respondent recognised her condition as a disability and made an adjustment to enable her to re-take the fitness test at a later date.
5. In September 2006 she also began to exhibit signs of unhappiness in her job. She did not like independent patrol duties. Action plans were drawn up and it was agreed that she would be removed from independent patrols. She later rejected the action plans. She also experienced welfare issues concerning her young son.
6. In September Police Sergeant Nally became her new manager. He tried to help her over performance issues, about which the Tribunal found it unnecessary to make findings (see paragraph 11). The Claimant responded by accusing him of bullying and sex discrimination; claims which she later withdrew.
7. On 2 December she expressed a wish to leave the police. On 19 December Chief Inspector Kinsella counselled her to take time over Christmas to consider her position and offered her welfare support. However, contrary to that advice, the following day she tendered her written resignation. Mr Kinsella spoke to her and asked her to reconsider. She said that she had an alternative job offer outside the force. Mr Kinsella delayed processing her resignation letter and asked the divisional personnel officer, Mr Coley, to arrange an exit interview with the Claimant. As the Tribunal put it (paragraph 13) it was clear the police were doing all in their power to persuade her to stay with them.
8. Mr Coley sent her an exit form on 21 December together with an appointment to see him on 8 January 2007. She did not complete and return the exit form but on 22 December told Mr Kinsella that she might have been hasty and may stay in the force. She asked to be transferred to a different team. She had earlier rejected a previous offer of transfer from Sergeant Nally's team. Mr Kinsella offered transfer to any other team but the one which she had identified and which itself had performance issues. She rejected that offer. Mr Kinsella then formed the view that she appeared set on leaving and starting her new job on 8 January. He urged her to think over Christmas and continued to delay processing her resignation letter of 20 December.
9. She was on holiday over the Christmas period and on 2 January 2007 telephoned Mr Coley to bring forward the exit interview arranged for 8 January because she planned to start her new job on that day. The interview was rearranged for 3 January. She attended that meeting with Mr Coley. He wanted to ascertain why she wished to leave the force. She did not appear to have health problems at that time. He sought to persuade her to retract her resignation and believed he had persuaded her to do so and regarded that as a success. Thereafter, she was offered a move to a team which had been her original choice or any other team. She rejected them all and confirmed her intention to resign, writing a second letter of resignation on 4 January and left immediately returning her uniform, warrant card and all police property. Her resignation was then processed and there being no bar to her resigning, such as misconduct or disciplinary issues, her resignation was accepted on 11 January, effective from 17 January; in employment law parlance the effective date of termination or EDT. Her appointment as a police constable ended on that date.
10. On 26 January 2007 she attended her general practitioner and was diagnosed with depression. On 31 January she telephoned the Respondent's personnel department to explain that she had been diagnosed with depression and indicated that she wished to be reinstated and to withdraw her resignation. On 2 February she was advised to write explaining why she had resigned and what she now sought. She spoke to Mr Coley that day and threatened "industrial tribunal proceedings" saying that she would now get a considerable sum of money because she had now been diagnosed with depression.
11. On 6 February she wrote to the head of personnel, Mr Spence, asking for what she called reinstatement and for permission to retract her letter of resignation, as she had made a hasty decision in a distressed state of mind brought on by depression. Subsequent medical reports made it clear that she had a history of depression linked to childbirth rather than her thyroid condition.
12. Her request for reinstatement was later considered by three heads of department. The conclusion reached was that there was no provision in the Police Regulations for reinstatement or re-engagement after a police officer had left the force. There was no right of appeal, none existed for this type of provision. A subsequent review of that decision by the deputy chief constable reached the same conclusion.

The Office of Police Constable

13. Section 13(3) of the Police Act 1996 provides that appointments to the rank of police constable should be made by the chief constable in accordance with the regulations made under section 50 of the 2003 Regulations. Regulation 10 of those Regulations sets out the various criteria which a candidate must meet to be appointed to the police force. We note that Regulation 10(1)(a) requires a person who has previously served in a police force to produce satisfactory proof of good conduct while so serving. Other provisions exist as to the potential officer's standard of eyesight; he or she must show sufficient competence in spoken and written English and numeracy and must provide information as to previous employment history or any other matter relating to appointment including, we assume, any relevant criminal convictions.
14. Regulation 12 provides for a period of probation which may be extended at the discretion of the chief constable and Regulation 13 makes provision for the discharge of a probationer. By Home Office Circular 2005/046 Annex C the minimum period of probationary service is two years. That period may be the aggregate of service in different police forces provided the period of service in one force lasted for one year or more. By Regulation 14 the consent of the chief constable is required when a member of a police force gives notice, as he is required to do, of an intention to retire from the force. Although police officers are office holders, it is common ground that, by virtue of section 64A DDA, the holding of the office of constable shall be treated as employment for the purposes of the protection afforded to employees by that Act. Thus this Claimant is entitled to rely on the provisions of section 16A DDA.

Reasonable Adjustments

15. Section 16A DDA was initially inserted by statutory instrument with effect from 1 October 2004. It has since been amended. It applies post-termination of employment. So far as is material, by section 16A(4), this subsection applies where:

"(a) a provision, criterion or practice (PCP) applied by the relevant person to the disabled person in relation to any matter arising out of the relevant relationship, or

(b) a physical feature of premises which are occupied by the relevant person,

places the disabled person at a substantial disadvantage in comparison with persons who are not disabled, but are in the same position as the disabled person in relation to the relevant person, and

(5) Where subsection (4) applies, it is the duty of the relevant person to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the PCP … having that effect."

16. Section 16A(6) deals with the employer's knowledge. That is not an issue in this case. The approach to the duty to make reasonable adjustments during employment under section 4A, replacing the former section 6 DDA, which at section 4A(1) reflects the above post-termination provisions in section 16A(4) and (5), has been the subject of extensive judicial consideration. It is sufficient, by reference to the helpful analysis by HHJ Serota QC in Environment Agency v Rowan [2008] IRLR 20 paragraph 27, to state the statutory steps which an Employment Tribunal should follow in the present case in determining whether or not the Respondent is in breach of his duty to make reasonable adjustments. The Tribunal should identify (1) the PCP applied by or on behalf of the Respondent, (2) the identity of the non-disabled comparator where relevant, and (3) the nature and extent of the substantial disadvantage suffered by the Claimant. Once it is found that the duty to make reasonable adjustments is engaged, it will be for the Tribunal to assess what, if any, adjustments are reasonable in order to prevent the PCP having the disadvantageous effect. Reference may be made for this purpose to the provisions of section 18B.
17. The Tribunal hearing occupied five days and judgment was reserved. Both counsel who appeared before us, as they did below, lodged written closing submissions for consideration by the Tribunal. We have read those submissions and note, in particular, that both counsel drew the Tribunal's attention to the House of Lords case of Archibald v Fife Council [2004] IRLR 651. The Tribunal make no express mention of Archibald in their reasons. The facts and conclusions of their Lordships and her Ladyship in that case, decided on the provisions of the former section 6 DDA, bear close scrutiny.
18. Ms Archibald was employed by the Respondent council as a road sweeper grade 1. Following a surgical procedure she became disabled and was unable to meet the physical demands of work at her grade. Her complaint that she ought to have been redeployed to a suitable post, without going through the council's mandatory process of competitive interview, and that failure to allow her to do so amounted to a failure to make a reasonable adjustment contrary to then section 6, was rejected by the Employment Tribunal. Appeals by her to the EAT and the Court of Session failed. On further appeal she succeeded before the House of Lords. Lady Hale, giving the principal speech, observed that:

"The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment (paragraph 47)."

Lord Hope at paragraph 19 and Lord Rodger at paragraph 30 agreed with that broad overview of the DDA. Thus, whereas the lower court and tribunals had taken the view that to dispense with the competitive interview in Ms Archibald's case would have amounted to more favourable treatment than that afforded to an able bodied comparator and hence would have contravened what was then section 6(7) of the Act, since removed by the 2004 amendments, the House of Lords recognised that a reasonable adjustment may require alterations to the normal processes for appointment, recruitment, transfer or even promotion.

The Tribunal Decision

19. We note that all claims under the DDA during her employment by the Respondent were withdrawn at the outset of the hearing before the Tribunal. That was a proper course to take. It is clear from the facts that the Respondent made every effort to accommodate the Claimant prior to termination of her appointment. In particular, it is plain that Mr Kinsella and Mr Coley took conscious steps to dissuade the Claimant from tendering her resignation. Had she done so, it is clear that she would have been permitted to do so and her appointment would have continued.
20. Thus, the single remaining complaint before the Tribunal was whether in not reinstating the Claimant after she sought to retract her resignation, the Respondent was in breach of his section 16A duty. As to that issue, the Tribunal made the following relevant findings adopting the Rowan approach:

(1) Although not entirely clearly identified in the Tribunal's reasons we are content, as is Mr Cooper, to adopt Ms Garner's helpful analysis of the Tribunal's findings leading to the conclusion that the duty under section 16A was engaged as formulated at paragraph 5.4 of the Respondent's answer in this way.

(a) The PCP was that police officers who had retired and whose retirement has taken effect cannot be reinstated or re-engaged (i.e. their notice of retirement cannot be retracted).

(b) The substantial disadvantage that may be suffered by a person with a mental illness (depression) is that, because the decision to retire is more likely to have been on irrational grounds, the PCP is more likely to take effect with regard to disabled persons rather than able-bodied persons.

(2) As to whether reinstatement as a probationer was a reasonable adjustment, the Tribunal found that it was not. Their reasoning was as follows. The three heads of department believed her appointment had come to an end and there was no provision in the Regulations to reinstate her (paragraph 41). You are either a police officer appointed under the Regulations or you are not. If you are not a police officer so appointed, the only way you can be appointed is through a regulatory process meeting all the statutory and regulatory criteria (paragraph 42). There is no provision for an ex-office holder to be re-engaged other than through the qualifying process set out in the Regulations (paragraph 46). We do not consider that to require a chief constable to go beyond his statutory and regulatory powers would be a reasonable adjustment (see paragraphs 48 and 51). The Respondent did consider the Claimant's application to retract her resignation and to be reinstated or re-engaged but it was concluded there was no power to do so under the Police Act or the 2003 Regulations and we, the Tribunal, consider that to be right (paragraph 53).

Finally at paragraph 59 they said this:

"There is and always will be a route for the Claimant back into the police force. It is the route that is available to any ex other (sic) officer holder and it would involve her applying to be re-appointed and meeting the criteria under Regulation 10."

The Appeal

21. This appeal, as we indicated at the outset, raises a short but important question of construction. Was the Tribunal correct in accepting the Respondent's case that he had no power under the Police Act and the 2003 Regulations to re-appoint the Claimant after her resignation was accepted, in employment terms to reinstate or re-engage her; her only way back was through a fresh application for appointment.
22. In submissions, Ms Garner told us that she was not aware of any express prohibition in the police legislation against such a course being taken. Was it a permissible option? On the particular facts of this case, Mr Cooper has persuaded us that it was. On first appointment the Claimant met the criteria in Regulation 10. On reinstatement she would be subject to the probationary requirements in Regulation 12 read with the relevant Home Office Circular 46/2005 Annex C to which we have referred. As to whether it would have been a reasonable adjustment we bear in mind on the Tribunal's findings that the Claimant's performance was not an issue (paragraph 11) and that up until the acceptance of the Claimant's resignation on 11 January, effective on 17 January, the Respondent, through Mr Kinsella and Mr Coley, was endeavouring to persuade her to retract it. What then changed between 17 January and 31 January when the Claimant asked to be, in a non-technical sense, reinstated and to retract her resignation? The short answer, so the three heads of department with whom the DCC agreed, was that there was no provision in the Police Regulations for that to happen. True it is that there is no express provision catering for that course; equally there is none prohibiting it. But for that perceived procedural bar it is plain on the Tribunal's findings that to take her back into the service, without the need to reapply from scratch, would have been a reasonable adjustment, just as it would be reasonable to consider waiving the competitive interview requirement in the case of Ms Archibald. Put shortly, Mr Cooper has persuaded us, as a matter of construction, that the bar to re-appointment, in the form of reinstatement or re-engagement of the Claimant, perceived by the Respondent and upheld by the Tribunal, does not exist. Having so held, we shall allow this appeal.

Disposal

23. Ms Garner urges us in these circumstances to remit this liability issue to the same Tribunal for re-hearing. Mr Cooper invites us to substitute a finding that the complaint of failure to make a reasonable adjustment in the form of reinstatement/re-engagement is made out on the facts found by the Tribunal. Emboldened by the recent observations of Jacob LJ in Buckland v Bournemouth University [2010] IRLR 445 paragraph 57, since no further evidence or findings of fact are required, we shall accede to Mr Cooper's invitation and reverse the finding of the Tribunal, uphold the Claimant's single remaining complaint under section 16A DDA as identified earlier and remit the question of a remedy for that breach to an Employment Tribunal appointed by the Regional Employment Judge, not necessarily the same Tribunal chaired by Employment Judge Warren.