|At the Tribunal|
|On 16 and 17 February 2010|
THE HONOURABLE MRS JUSTICE SLADE DBE
DR B FITZGERALD MBE LLD FRSA
MS G MILLS CBE
Transcript of Proceedings
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|For the Appellant||MS SALLY ROBERTSON
Russell Jones and Walker
50-52 Chancery Lane
|For the Respondent||MR DIJEN BASU
Metropolitan Police Service (Legal Services)
New Scotland Yard
Direct disability discrimination
The Employment Tribunal rejected the Appellant's contention that the reason for his treatment by the Respondent of which he complained was a perception that he had a dangerous mental illness. Any argument that action taken on grounds of a perception of mental illness is for a reason relating to or on grounds of disability within the meaning of the Disability Discrimination Act 1975 is therefore academic in this appeal. In any event on the current state of the law, conduct of which complaint is made under DDA must be for a reason relating to or on grounds of actual not perceived disability. Coleman v Attridge Law  ICR 1128, EBR Attridge LLP v Coleman  ICR 242 and English v Thomas Sanderson Blinds Ltd  IRLR 206 considered. An argument that bad behaviour was so much part and parcel of the Appellant's disability that treatment because of such behaviour was unlawful discrimination was not in the ET and would have required relevant findings of fact.
In making the statutory comparison for determining whether there has been less favourable treatment the bad behaviour is not to be 'stripped out'. London Borough of Lewisham v Malcolm  IRLR 700 applied. The appeal from the dismissal of disability discrimination claims dismissed.
In assessing the reasonableness of the adjustment the Employment Tribunal was entitled to have regard to the need that a police officer should not appear to present a danger to colleagues or to the public.
The appeal from the dismissal of reasonable adjustments claims also dismissed.
THE HONOURABLE MRS JUSTICE SLADE
Grounds of Appeal
(1) The ET misdirected itself in law by excluding discrimination on grounds of perceived disability when considering Sections 3A(1) and 3A(5) read with Section 4 of the DDA.
(2) Further or alternatively failed to give adequate reasons for its decision given the Appellant's submissions that the Respondent's actions were based on its perception of risk (mental illness involving a potential threat to others) i.e. perceived disability in light of its finding that 'as a matter of fact PC Aitken is not a danger to members of the public, female colleagues, or anyone else for that matter….', and its findings in relation to the fear he engendered in others.
(3) The ET misdirected itself in its construction of the hypothetical comparator and in the comparison required for the purposes of DDA Sections 3A(1) and (5) DDA by implicitly excluding disability and/or perceived disability or perceptions of dangerousness, on both sides of the comparison by failing to exclude such protected characteristic when making the comparison.
(4) The ET gave inadequate reasons and/or findings of fact to deal with the Appellant's case that the less favourable treatment lay in the Respondent's failure to resolve or close the Christmas 2005 social event incident and/or be satisfied as to its underlying causes. Without the fear of a 'dangerous' mental illness all matters relevant to decision-making in relation to that incident would have been explored and addressed. Had the comparator been given words of advice or disciplined, the matter would have been over.
(5) The ET misdirected itself in considering the steps required by way of reasonable adjustments:
(a) despite its finding of 'no danger' at paragraph 191, impermissibly taking account of discrimination on the basis of perceived disability;
(b) failing to consider what steps were reasonably required in the light of its finding of 'no danger' at paragraph 191;
(c) failing to consider what steps were reasonably required at and in the context of the material times (e.g. by switching from the 'restricted duties' context in which the Appellant was working and to which he sought to return, to that of full normal duties);
(d) failing to address the imposition at those times of 'overzealous' adjustments (raised by the 4th, 5th and 6th adjustments). These adjustments were:
'9(iv) Failing to pursue, adequately and/or reasonably recommendations made by the psychiatrist;
9(v) Refusing to allow the Claimant to return to work in January 2007;
9(vi) Refusing or failing, from January 2007, to place the Claimant back in the VIIDO role or into a similar role that was suitable.'
Summary Relevant Facts
'During the course of the afternoon the Claimant's colleagues felt extremely uncomfortable and perceived the Claimant to have mental health problems that scared them. It came to the point that his behaviour was inappropriate aggressive and threatening to the extent that they felt unable to continue the festivities.'
'if healthcare professionals are uncertain about the risks associated with intrusive sexual, aggressive or death related thoughts reported by people with OCD, they should consult mental health professionals with specific expertise in the assessment and management of OCD. These things are common in people with OCD at any age, and are often misinterpreted as indicating risk.'
'She explained that the Appellant had a serious medical condition and was not suited to the role of police officer. She also said that PC Aitken would need to be very supervised and continually risk assessed over the course of the next few weeks until the matter reached to conclusion.'
'..accepted that the duty of reasonable adjustments arose and that PC Aitken would meet the definition of disability under the DDA 1995, but that the nature of the restrictions being placed upon him of having no direct contact with the public either in person [or] on the phone meant that it would not be reasonable to find such a role.'
'He continues: 'However, as reported by the Tribunal [Medical Appeal Board following ill health retirement decision] there is no evidence of any dangerous behaviour ever having been exhibited by him towards anyone: friends, colleagues or the public. He has no formal forensic history. His current girlfriend describes no history of intimidating behaviour towards her and perceives him as gentle. He strongly denies ever having wished to harm anyone.'
'Dr Broadhead concludes that he does not see PC Aitken as being fit to return at this point. A cost of private psychiatric services would be in the order of £120 per weekly session and a psychiatrist of £150 to £200 per monthly consultation.'
'is disabled within the meaning of the DDA on account of his OCD, bowel and digestive problems, depression and anxiety including an element of agoraphobia'.
Grounds of Appeal
Ground 1: Perceived disability
'9(i) The Respondent's handling of the Christmas 2005 social event incident and by continued references to, and use of, the incident in relation to the Claimant's medical retirement.
9(viii) Acting on the basis of assumptions made about mental illness and the nature of the Claimant's OCD condition without objective appropriate medical evidence, and thereby stereotyping the Claimant and/his (sic) condition, and, if so in what respect.'
In support of this ground of appeal Miss Robertson relied on parity of reasoning with Coleman v Attridge Law  ICR 1128. As is well known, in that case the ECJ held that less favourable treatment of the claimant on the grounds of her child's disability is contrary to Article 2(2)(a) of the Council Directive 2000/78 ('the Directive'). Reference is made in particular to paragraph 38 in which the European Court of Justice held that:
'....the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.'
'... for the purposes of liability under the 1995 Act the disability to which the reason for the treatment complained of relates must be a disability from which the claimant is in fact suffering, so that in principle a reason for action relating to (believed) disability A is not caught if the employee is in fact suffering only from (different) disability B.'
Ms Robertson contended that the judgment of the Employment Appeal Tribunal in Johnson, is inconsistent with and is trumped by the judgment of the ECJ in Coleman.
'Although Mr Aitken was on the face of things treated better in that he was not disciplined but was given words of advice, the detriment, the less favourable treatment, lies in the reason for the 'fear of repetition'(a fear of 'dangerous' mental illness, and in Dr Fletcher's case her fear for her own personal safety- see para 58) and the consequent failure to resolve or close the incident [the behaviour at the 2005 Christmas party] and/or be satisfied as to its underlying causes which led to the Respondent returning to it and the fears generated by it time and again.'
It is said in paragraph 24 of the skeleton argument that:
'The grounds of or reason for the different treatment lies in the perception or fear of a 'dangerous' mental illness, not as the Respondent's Answer suggests 'about an erroneous perception that, as a man with a mental illness, he was dangerous'.
'... as a matter of fact PC Aitken is not a danger to members of the public, female colleagues, or anyone else for that matter. ....'.
'192. We find that the Respondent did not act on the basis of assumptions about mental illness but they acted on the basis of how PC Aitken appeared to others. Unfortunately he gave the impression at times of having enormous difficulty in controlling his temper and, as we have seen at the Christmas social in 2005, scared his colleagues especially female colleagues.'
193. It is not therefore the case that the Respondent acted on the basis of assumptions about mental illness per se, it was about how the Claimant presented himself. This therefore does not meet the test of direct disability discrimination.'
'strong possibility someone without the Claimant's particular disability would have been treated less favourably than he was and the disciplinary code applied more harshly to them'.
'the Directive only protects from direct discrimination and harassment persons who are themselves disabled.'
The question was referred to the ECJ by EJ Stacey who chaired the hearing of the Appellant's claims. The ECJ did not decide that persons who did not have but were perceived to have a disability were within the scope of the Directive.
The relevant provisions of the DDA
(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
(2) In this Act "disabled person" means a person who has a disability.
3A Meaning of "discrimination"
(1) 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.
(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
4 Employers: discrimination and harassment
(2) It is unlawful for an employer to discriminate against a disabled person whom he employs–
(e) by dismissing him, or subjecting him to any other detriment.
The relevant provisions of Council Directive 2000/78 ('the Directive')
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of ….disability …as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
1. For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
'9(i). The Respondent's handling of the Christmas 2005 social event incident by continued references to, and use of, the incident in relation to the Claimant's medical retirement'
was discrimination contrary to the DDA.
'...We now know that his behaviour was on account of his OCD and we accept entirely what Dr Broadhead says which is that in fact his colleagues probably need not have feared. But fearful they were and we can understand why and objectively anyone in that situation would also have been fearful in the way that they were.'
'The continued references to and use of the incident in relation to the Claimant's medical retirement was on grounds of the seriousness of the incident itself and the Respondent's fear of repetition.'
'Anyone else who did not have that particular disability who had behaved in like manner at a Christmas social, would have been treated no more favourably. Actually, there is a strong possibility that someone without the Claimant's particular disability would have been treated less favourably than he was and the disability code applied more harshly to them. We should perhaps be more explicit- his behaviour on that day constituted gross misconduct.'
'9(viii). –acting on the basis of assumptions about mental illness and the nature of the Claimant's OCD condition without objective appropriate medical evidence, and thereby stereotyping the Claimant and/or his condition.'
was discrimination contrary to the DDA.
'The Respondent has acted on the basis of assumptions about mental illness and the nature of obsessive-compulsive disorder itself and as experienced by the Claimant'.
'191. Now we have said above that we are satisfied from Dr Broadhead's clear and comprehensive report that as a matter of fact PC Aitken is not a danger to members of the public, female colleagues or anyone else for that matter. We accept however that at the material time, reasonable people, such as Sarg. Shaw and including Dr Fletcher who is a qualified doctor, were scared by him, and whether their fear was justified knowing what we now know about the condition of OCD is off point. His behaviour was frightening.
192. We find that the Respondent did not act on the basis of assumptions about mental illness, but they acted on the basis of how PC Aitken appeared to others. Unfortunately he gave the impression at times of having enormous difficulty in controlling his temper and, as we have seen at the Christmas social in 2005, scared his colleagues especially female colleagues.
193. It is not therefore the case that the Respondent acted on the basis of assumptions about mental illness per se, it was about how the Claimant presented himself. This does not meet the test of direct disability discrimination.'
'…Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by article 2(2)(a)'.
The effect of the judgment of the ECJ on the interpretation of the DDA was explained by Underhill P in EBR Attridge Law LLP v Coleman in determining an appeal on the reference back to the ET. He held in Coleman that the DDA Section 3A(5) was to be modified to add the words 'or a person associated with a disabled person' after 'A person directly discriminates against a disabled person'.
'… for the purposes of liability under the 1995 Act the disability to which the reason for the treatment complained of relates must be a disability from which the claimant is in fact suffering, so that in principle a reason for action relating to (believed) disability A is not caught if the employee is in fact suffering only from (different) disability B.'
is not inconsistent with or 'trumped' by the judgment of the ECJ in Coleman as was submitted by Miss Robertson. Lawrence Collins LJ in English v Thomas Sanderson Blinds Ltd  ICR 543 observed at paragraph 49 that the words in DDA Sec 3B
'… for a reason which relates to the disabled person's disability'
are distinguishable from those used in other discrimination statutes which do not relate the relevant characteristic to the complainant. The DDA requires an actual disability, albeit that since Coleman the disability may be that of a person associated with the complainant. The language of DDA Section 3B is materially indistinguishable from that in Section 3A(1)(a). There would be no basis for adopting a different approach to the requirement that treatment be on the ground of an actual disability in construing Section 3A(5). As Underhill P observed in Coleman (No 2) the phrases 'by reason that' and 'on the ground of' are interchangeable in this field- see Nagarajan v London Regional Transport  IRLR 572 at p 576.
77. The language of DDA Sections 3A(1) and (5) requires that the discrimination of which complaint is made be for a reason related to or on grounds of an actual particular disability (see also Sections 1 and 2(1)). Coleman was a case in which there was alleged discrimination on the grounds of a person's actual disability. The ECJ decided the Directive included discrimination on the grounds of the disability of a person associated with the person discriminated against. The ECJ did not rule that discrimination on grounds of perceived disability was within the scope of the Directive. Coleman does not 'trump' Johnson. Accordingly the conduct of which complaint is made under DDA Sections 3A(1) or (5) must be for a reason relating to or on grounds of a disabled person's actual disability.
Ground 2: The comparison required
'To strip out 'disability', actual or perceived, but include the substance of the signs and behaviour on both sides of the comparison is, it is submitted, illegitimate.'
She submitted that the ET erred in formulating the relevant circumstances in making the statutory comparison in stating at paragraph 179:
'… The relevant circumstances, including abilities would be appearing to be aggressive and potentially subject to uncontrollable anger and strong emotion, and to appear to be threatening to women'.
The ET erred in treating these characteristics as relevant circumstances to be included in constructing the hypothetical comparator as they were the consequence of the Appellant's disability. In this regard Miss Robertson relied on the findings at paragraph 191 that the Appellant was not in fact a danger to the public and at paragraph 168 in relation to his behaviour in the Christmas 2005 incident that
'We now know that his behaviour was on account of his OCD and we accept entirely what Dr Broadhead says which is that in fact his colleagues probably need not have feared.
Ground 3: Reasonable adjustments
'The only question is, objectively, whether the employer has complied with his obligations or not.'
4A Employers: duty to make adjustments
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer 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 provision, criterion or practice, or feature, having that effect.
'to what extent would that step prevent the disadvantage to PC Aitken? The answer is not much because of the importance of the need for a serving police officer to appear not to be a risk to his colleagues and members of the public-it is about perception as well as the actuality of the situation. …. Unfortunately PC Aitken presents as a risk.'
'PC Aiken's colleagues were very concerned about his mental health and his apparent instability and inability to contain aggressive tendencies.'
He also had a history of depression.