met_police_bikeIn Buchanan v Commissioner of Police of the Metropolis the Employment Appeal Tribunal considered the case of a serving police officer who was disabled as the result of a serious motor bike accident while on duty (the bike’s brakes failed). The accident happened in late 2012 when he was responding to an emergency call. Following the accident he was diagnosed with serious PTSD and did not return to work. By April 2013 he was recognised as a disabled person within the meaning of the Equality Act 2010. By May 2013 the employer knew or could reasonably have been expected to know that he was disabled and during that month he was placed on the employer’s rather unfortunately named “Unsatisfactory Performance Procedure” (UPP).

The Procedure is derived from provisions in the Police (Performance) Regulations 2012. The Regulations define unsatisfactory performance as “an inability or failure of a police officer to perform the duties of the role or rank he is undertaking to a satisfactory standard or level”. The Procedure has three stages. Under the first, a line manager may require an officer to attend a stage one meeting to discuss performance or attendance. Following such a meeting an improvement notice may be issued. Alternatively the meeting may be adjourned or postponed so that the process does not have to proceed to the next stage.

The second stage is invoked if there has not been a sufficient improvement and involves a mandatory meeting. If a notice is issued then it must be a “final improvement notice”. The third stage (which was not reached in Mr Buchanan’s case) also involves a mandatory meeting, this time before a panel and witnesses may be called.

Sitting in the Employment Appeal Tribunal, His Honour Judge David Richardson noted that the Regulations make no express provisions relating to disability, but the Procedure includes plenty of opportunities for allowances or adjustments for disability to be made (for example by exercising the discretion not to call a first stage meeting). However, although the Procedure could be made to work in the case of a disabled officer, the question of disability would have to be addressed carefully by management in order to comply with the requirements of the Equality Act 2010. Judge Richardson observed that what was really required for an informed decision to be made in respect of disabled employees was medical evidence concerning the prospect of an officer returning to work and, if so, in what capacity, as well as opportunities for consultation with the officer about available options.

In Mr Buchanan’s case he was told on 21 August that he had to return to work on 9 September or face “UPP and all that it entails”. He did not return to work and UPP stage one commenced on 23 September. There was a meeting on 10 October and he was issued with an improvement notice requiring his return to work by 3 December. An appeal was successful only to the extent that the return date was put back to 23 December. Again he did not return to work and, following a stage two meeting on 27 January 2014, he was issued with a final improvement notice requiring his return to work  by 31 March. Again, an appeal only secured an extension of the deadline, this time to 19 May.

Critically, the employer was aware throughout this process (as a result of medical advice) that Mr Buchanan would not be able to comply with the deadlines given. He remained seriously ill.

Mr Buchanan took his complaint of disability discrimination to an Employment Tribunal which took place in July 2015. At about the same time he applied for and secured medical retirement. The Tribunal noted that Mr Buchanan’s representative did not attack the scheme on the ground of proportionality. Rather, her criticism was directed at how the scheme was operated, including the point that the notices required Mr Buchanan to work when he was patently unable to do so. The Tribunal was satisfied that Mr Buchanan had suffered unfavourable treatment. However, it took the view that the employer’s procedures had to be considered objectively, rather than scrutinising how they were applied to Mr Buchanan.

Judge Buchanan held that the starting point must be the words of section 15 of the Equality Act 2010, which require the alleged discriminator to show that its treatment of the individual concerned was “a proportionate means of achieving a legitimate aim”. Accordingly the focus should be on “the treatment”. He accepted that there are cases in which whether the treatment was justified will depend on whether the underlying policy or procedure was itself justified. However, such cases would, in his judgment, be rare because policies and procedures in general allow “a series of responses to individual circumstances”.

Accordingly the appeal was successful and the matter was remitted to the Tribunal to rehear the issues afresh, taking into account the provisions set out I section 15 of the Act.

This case is a useful reminder that applying procedures rigidly will often not be enough in itself o avoid an adverse finding. The employer must take account of the particular circumstances of each case and, where necessary, make appropriate adjustments. At CLB Employment Solutions, as well as providing comprehensive resources including contracts, policies and procedures, all our packages (apart from web-only access) include support and guidance from a specialist employment solicitor who will provide you with advice tailored to the specific features of the case being considered. Our objective is to head off potential problems before they can develop into claims, as well as encouraging better employer-employee relations. You can find details of our highly competitive subscription rates here.

1 Comment

  1. Dear sir
    I recently had an ET case (judgement 2400803/2016) made by Judge Ryan & panel go against me and am considering an appeal. I believe the tribunal acted unlawfully and my representatives EAD were remiss in the presentation of the facts. My case rested on the fact that I was never advised of rules relating to partial retirement/civil service compensation and was therefore unable to make an informed decision at a time of great distress.
    I am 59 years old and worked at the Home Office in Liverpool from 2006 to my dismissal in 2015. Almost 10 years.
    I became very ill during the latter part of 2013 & for over 2 years underwent various procedures for ischaemic degenerative heart disease, stomach tumours and other medical issues.
    In an effort to keep my job after struggling to maintain full time hours and after advice from both OHS professionals & my own doctors I decided in consultation with my line manager to reduce my hours as I was continuously threatened with dismissal. At the same time I was made aware by said manager that being over 55 and categorised as disabled I could take partial retirement and access my pension. I was not in the pension scheme prior to the government issue of mandatory workplace pension schemes so had only about 3 years membership of the pension scheme. It made sense for me to take what little pension was available as I had been on zero salary for 4-5 months and almost exhausted my savings. This enabled me to take a lump sum of just over £3000.
    I returned to work on my part time hours hoping to work until full retirement but unfortunately after 2-3 months became very ill again subsequently being dismissed on medical inefficiency grounds. I have no qualms about that but on being dismissed was issued with a MyCSP compensation/severance payment quote of £255, later reduced to £177. You may know this payment better as the Civil Service Compensation Scheme.
    MyCSP, which FYI is 51% owned by private equity firm Equiniti, 24% by the government and the remaining shares by mutual shareholders took over the administration of the scheme in 2012 with a remit from parliament to cut public sector pension costs by £500 million by 2020.
    MyCSP, according to companies house made a profit of £8 million in the last financial year 2015/16 despite 70% of pension details being categorised as wrong, late or inadequate by an inquiry in 2015. An inquiry that lead to the minister responsible Francis Maude resigning parliament and returning to the private sector. MyCSP do not let you know that if you take partial retirement and access your pension and then return to work your service is reduced to ZERO from the day after you take partial retirement. I only became aware of this once EAD had taken up my case. This meant my almost 10 years service was not calculable as part of my CSCS compensation/severance pay.
    MyCSP state that information about the extremely complicated rules applied to this are available on their website and I had responsibility to consider these before taking any action. No qualms with that either but I, and other colleagues couldn’t at that time get access because of MyCSP’s well documented IT issues so I requested the booklet “Partial Retirement” but was never sent it. This was ignored by the tribunal. When considering a reduction of hours and or a partial retirement you are required to complete the forms CSP15 & CSP16 which have a small print section in which you agree you have read the rules and accessed the pension calculator, which FYI was also not available. You cannot get your reduction in hours without signing these forms and my manager gave me a clear and absolute ultimatum that I sign to take reduced hours or face certain dismissal. In hindsight I would have been wiser to wait for dismissal but as I said previously my main aim was to stay in work. The MyCSP rules are then used in conjunction with section 11 of the Civil Service Compensation Scheme which again they don’t tell you and I only became aware of after dismissal.
    Section 11 and the multiple sub paragraphs deals explicitly with tariffs for redundancy, exit schemes etc but there is apparently no tariff for medical inefficiency? They state this continuously and include the reference numerous times in their defence. Strangely the 1 month per year of service applied in the redundancy/exit schemes WAS applied to a lovely ex colleague who having also been dismissed on medical inefficiency just 1 week after me received CSCS compensation/severance pay of £29,400?. This sum is exactly 1 month per year of her 15 years service, strange you may say seeing as they insist the tariff doesn’t apply to medical inefficiency?.
    The reasons given by the Barrister and MyCSP for the disparity are that she had not taken partial retirement or any pension yet they give no detailed breakdown of the calculation. She rightly retains 100% of her pension to be paid when she reaches that age.
    This effectively allows them to apply the rules in an arbitrary and, in my opinion a discriminatory way. Not only has my pension been reduced by almost 65% (the actual abated calculation is a reduction of 22/36ths) my almost 10 years service was then valued at £177 or an equivalent of £2 per month and justified by the statement I had in effect gained SUBSTANTIAL advantage by taking an early pension lump sum. My contributions to the pension scheme, at 4.5% of salary were far more than the lump sum received so I will only benefit if I live past pension age of 67 which is very unlikely given my medical circumstances.The Barrister for defence stated that I could potentially receive my pension (£31a month) for decades and this is ostensibly why the CSCS and service is wiped out in order to finance that possibility. Now my annual pension is just over £400 with a deemed pension pot of £12,000, £5,890 of which I contributed. Potentially receiving 30 years of my current pension means a total payout of £12,000 which is my deemed pension pot so no “substantial” benefit at all and only a highly paid Barrister retained to defend MyCSP would argue I could live to be 90 years old in my condition and have a Tribunal agree. They deemed that medical evidence asserting someone with my heart condition could at anytime succumb to fatal heart attack or stroke and be unlikely to reach pension age irrelevant as it was not set in stone but their “life expectancy” analogy of possible decades is the criteria used. In my Employment Tribunal, the highly paid barrister retained by the Home Office, Mr xxxxx during his questioning about the issue of having the correct information, stated directly to the tribunal that (quote) “I, and the general workforce was not meant to understand the rules” but was expected to obtain them. So whether I had the correct information or not there was no basis for debate as how the rules are applied and that in my case it was just my “misfortune” that the interpretation of these rules, which cover some 126 pages meant I was not entitled to a full CSCS Compensation/severance payment but only the 82 days worked after my hours changed. He also directed the panel that in his considered opinion the panel do not have the jurisdiction or judicial powers to find in my favour as this meant a possibly substantial cost to MyCSP as it may have a knock on effect in numerous other cases and a review of government compensation policy which they maintain is discretionary and not a right.
    That’s not misfortune but misinformation designed to claw back money from those in a similar position to myself and is a clear policy of MyCSP. There are numerous similar cases where this is happening and the money is going into Equiniti shareholders profits.
    Mr xxxxxx, pension technical policy advisor stated that the booklet or rules about partial retirement not being automatically sent to anyone seeking the same was in his opinion an unfortunate “omission” of MyCSP policy but whether I had access or not had no real effect on my decision to access my pension or the subsequent calculations applied in my case? I said this was wrong in every sense as I had no chance of making an informed decision but my representative did not argue the position. The policy advisor submitted in his statement that the 3 calculations sent by MyCSP were all in fact in error, his submitted calculation in his expert witness statement was in fact the correct calculation and in his opinion I was actually overpaid by some £70 but MyCSP would not seek to recover the overpayment at this time.
    Common sense dictates, had I had this information would have been to leave my pension alone, been dismissed anyway and received my correct compensation. Not so according to the highly paid barrister as that was not a retrospective decision and my first 5 years service would not be included in any compensation/severance. Had I not taken partial retirement I would still only have been entitled to £5,230 in their estimate and this would be subject to the same abatement of 23/36ths. So not the same formula used in my colleagues case but again no details of how it was calculated and again not challenged by my representative.
    If applying the same rules to myself as were applied to my colleague which we submitted should have been the case I would have received approximately £17,400 for my 10 years service.
    Judge Ryan and his colleagues in their decision notice make no reference at all to the inadequacy of the information supplied by MyCSP nor the comparison of my colleagues award in relation to mine but consider that I wanted “to have my cake and to eat it” This is a slanderous and vindictive remark that angers me greatly.
    Judge Ryan and panel were, (in my opinion) visibly intimidated by the Barrister and I believe neglectful in their appraisal. One of them even stated when questioning the policy advisor that the figures show I did not benefit but actually suffered detriment by the application of the rules but still decided in favour of the respondent. The Home Office could have given me an exit on redundancy terms as set out in their management code but chose to dismiss on the grounds they did because of the fact MyCSP is now shareholder based and profit driven.
    Regards
    Michael F Walsh

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