Rachida Sobhi is employed as a police community support officer (PCSO) with the Metropolitan Police. In 2008 she applied to become a police constable. In the course of her application she had her fingerprints taken and this led to the discovery that she has a conviction for theft from a former employer dating back to 1991. Her application consequently failed and she received a disciplinary reprimand (to remain on her record for five years) for failing to disclose the conviction in connection with both her applications to be a PCSO and a PC.
In 2009 she made a further application to become a PC. Her application was again rejected, this time because of the reprimand on file. The probability is that her previous conviction (now known) would have resulted in her application being unsuccessful in any event.
In 2010 Ms Sobhi brought an employment tribunal claim alleging discrimination on the grounds of sex, sexual orientation, religion or beliefs, age and disability. It is the claim of disability discrimination that was recently considered by the Employment Appeal Tribunal and that has caused something of a furore in the national press. The primary question for the EAT was whether Ms Sobhi was at the relevant time a disabled person. According to the Disability Discrimination Act (subsequently replaced by the Equality Act 2010 but relevant in this case) a disability in respect of which protection is available must constitute “a physical or mental impairment which has a substantial and log-term adverse effect on…ability to carry out normal day-to-day activities”. In this case Ms Sobhi claimed, with supporting medical evidence, to suffer from dissociative amnesia. This was claimed to have caused her to have gaps in her memory of events which occurred in 1991 so that she might not have recalled her conviction. The appointed expert, Professor Michael Kopelman, took the view that the “traumatic circumstances” of her life made her amnesia in respect of specific events likely to be genuine. However this “relatively small gap” in her “past remote memory” was unlikely to affect her day-to-day functions or her ability to perform well as a police constable now, when she is much more settled in her life”.
The appeal judge summed up the position as follows:
What all of that means is this. Although Ms Sobhi’s loss of memory was limited to just one aspect of her past, her loss of memory in that respect had an adverse and long-term effect on any activity of hers which required her to recall whether she had any previous convictions. One of those activities was applying to become a police constable. That was an activity to which the definition of disability in section 1(1) of the 1995 Act should be treated as applying because, despite its language, a person must be regard as a disabled person if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in professional life. Such an activity must include Ms Sobhi’s application to become a police constable.
There is an anomaly here which I find difficult to resolve. Ms Sobhi was either not aware of her disability or not aware of the impact of her disability on her ability to recollect her conviction when she applied to become a police constable. Nor, of course, was the Metropolitan Police. But since she was required to disclose her previous conviction when applying to become a police constable, and since that requirement might be said to have placed her at a substantial disadvantage in comparison with people who could remember any previous convictions they had, and who therefore disclosed them on the appropriate form, the Metropolitan Police would have been under a duty to take such steps as were reasonable to prevent that requirement from having that effect. It is a little difficult to see what steps they could have taken if they did not know of Ms Sobhi’s memory loss. That might suggest that her memory loss was not the kind of disability which the Directive contemplated.
There are, as I have said, a number of subsidiary grounds of appeal, but none of them need to be considered in the light of my conclusion on this core ground of appeal. It follows that Ms Sobhi’s appeal must be allowed, the employment judge’s finding that she was not a disabled person must be set aside, as must his order that her claim of discrimination on the ground of her disability be dismissed, and the case must be remitted to the employment tribunal for it to consider whether in February 2009 when Ms Sobhi completed the security questionnaire, she knew of her amnesia relating to various events that occurred in 1991, because if she did, that goes to the question whether she should have said that she did not know whether there was anything in 1991 which she had to disclose to the Metropolitan Police. The answer to that question, as well as what this judgment says about what constitutes normal day-to-day activities, may have an impact on what the appropriate finding should be as to whether the effect which her amnesia had on her ability to carry out her normal day-to-day activities should be characterised as substantial.
It is fair to say that some of the press coverage concerning the case has demonstrated considerable scepticism about the medical evidence and barely concealed hostility towards Ms Sobhi, a “convicted thief” whose amnesia has “caused her to forget her crime – but no other aspect of her life” and whose “bizarre” case has “astonishingly” been supported by a “renowned psychiatrist”.