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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lincolnshire Police v. Weaver [2008] UKEAT 0622_07_1903 (19 March 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0622_07_1903.html Cite as: [2008] UKEAT 0622_07_1903, [2008] UKEAT 622_7_1903 |
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At the Tribunal | |
On 12 March 2008 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MS K BILGAN
MR D G SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Respondent
For the Appellant | MS LOUISE CHUDLEIGH (of Counsel) Instructed by: Force Solicitor Lincolnshire Police Legal Services Police HQ P O Box 999 LINCOLN LN5 7PH |
For the Respondent | MS RACHEL WEDDERSPOON (of Counsel) Instructed by: Messrs Russell Jones & Walker 1st Floor, St James House 7 Charlotte Street MANCHESTER M1 4DZ |
SUMMARY
Disability Discrimination – Reasonable adjustments
The Employment Tribunal found that there has been a failure to make a reasonable adjustment. The EAT held that the tribunal had misdirected itself in determining that question and remitted the case to a fresh tribunal.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The background
"The application process will include a Divisional Commander/Head of Department recommendation and, where required, completion of a business case. The Deputy Chief Constable will, upon consideration of the application against the business needs of the Force, decide whether or not the application should be accepted. For applicants above the rank of Chief Inspector, the Chief Constable will make a recommendation to the Home Office."
There is a right of appeal from the decision of the Deputy Chief Constable to the Chief Constable by way of review.
"Is Thirty Plus available to restricted duty applicants?"
The answer is:
"Yes. The Thirty Plus Retention Scheme requires you to be fit for the role you are currently performing. This does not necessarily equate to being declared fit to undertake all operational duties. The key is further service should be operationally useful and should not expose an officer's disablement or health to undue risk of deterioration."
"It is important that all applications to the Scheme are carefully considered, particularly in light of the review of officers on restricted duties and work force modernisation. There should be a clear business case for retaining officers either in their current role or in other suitable roles in the organisation. The application process should therefore also take into account whether it is beneficial to the force to retain their particular skills, experience and knowledge."
She recommended that in all cases there should be a business case submitted with the application. That case should take into account the wider implications of retaining the officer.
"There are a number of restricted officers currently employed with Lincolnshire Police, which has a direct impact on the Force's resilience. Therefore it is vital that we retain posts that can be undertaken by restricted officers available. A restricted officer can undertake your post as CTO Enquiry Officer whilst still within their period of service, and so it is within the best interests of the organisation to retain this post."
"…I have been mindful of the aims and requirements of the scheme and it may be useful to start by mentioning these. The scheme was introduced for the operational benefit of the Police Service, not as a benefit or entitlement for police officers who achieve 30 years' service. In order for us to approve the application we need to be sure there is a clear business benefit to the force."
He went on to praise the officer for his skills, experience and professional attitude, but nonetheless refused the application commenting that there were more officers on restricted duties than posts available and that the force was in the process of identifying which posts would be suitable for restricted duties officers.
The law.
"4A Employers: duty to make adjustments
(1) Where –
(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…."
"(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."
"if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
"(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he complied with that duty."
"18B: Reasonable adjustments: supplementary
(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular to –
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking."
The Tribunal's decision.
1) identify a provision, criterion or practice (PCP)
2) determine the pool of employees touched by the PCP
3) decide whether disabled persons were at a substantial disadvantage compared with
non-disabled persons in that pool because of the effect of the PCP.
"Before finding that an employer has discriminated against a disabled Claimant in failing to comply with the duty to make reasonable adjustments an Employment Tribunal must identify:
(a) the arrangement (now provision criterion or practice under s4A DDA as amended) applied by or on behalf of the employer
(b) the physical feature of premises occupied by the employer (if applicable; not this case)
(c) the identity of non-disabled comparators (if appropriate)
(d) the nature and extent of the substantial disadvantage suffered by the Claimant.
Only then will it be possible to determine the question as to what adjustments it would be reasonable for the employer to make, bearing in mind the extent to which such adjustments would prevent the arrangements made by the employer placing the disabled Claimant at a substantial disadvantage when compared with the non-disabled comparator."
What adjustments could be made and was it reasonable to make them?
"7.5 ……In determining whether it was reasonable to take this step the Tribunal has looked at the factors set out under Section 18B(1) of the Act. We note that it would have bee entirely practicable for the Respondent to permit the Claimant to go onto the Scheme, indeed, that had been its original intention. There would have been no cost implication in doing so, if anything the Respondent may have achieved a small saving in respect of pension contributions. Despite its financial difficulties the Respondent is a well resourced and large organisation. Permitting the Claimant to go on to the Scheme would have made no difference operationally; he would have continued to do the same work. There was no suggestion that the Claimant was to be moved from his post or that he might be dismissed before the Respondent's ordinary retirement age if he were not accepted.
7.6 Taking all these factors into account we find that there was a reasonable adjustment which could have been made, namely to permit the Claimant access to the Scheme notwithstanding that he was in a restricted duties post. By taking this step it would have removed the disproportionate effect of the PCP that the employer had applied. In essence this step would have placed the Claimant's application on the same footing as his non-disabled colleagues. In considering the issue of reasonableness we have borne in mind that many of the employer's aims in taking the approach it adopted were laudable. Mr Crompton was concerned to manage the workforce effectively and to give other employees on restricted duties who might find themselves medically retired without full service, the opportunity of achieving the same full service as the Claimant. However, in considering the question of reasonableness we cannot ignore the fact that it was this very policy which created the substantial disadvantage in the first place. We are also conscious that the test of reasonableness is an objective one. Taking thee factors into account we are satisfied, therefore, that a reasonable adjustment existed; namely permitting this Claimant on to the Scheme. The Respondent failed to do this and it follows, therefore, that the Claimant's complaint of unlawful discrimination under Section 3A(2) of the 1995 Act succeeds."
The grounds of appeal
Conclusions.
Failure to consider the wider implications.
The deliberate adoption of the policy.
The purposes of the Act.
case [2006] IRLR 840 in the EAT when I commented that:
"the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce"
Disposal.