In 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.