Appeal No. UKEAT/0403/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 2007
Judgment handed down on 6 December 2007

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS R CHAPMAN
MR D WELCH

MS L HART	APPELLANT

CHIEF CONSTABLE OF DERBYSHIRE CONSTABULARY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOHN HORAN
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker
Solicitors
1st Floor St James House
7 Charlotte Street
MANCHESTER
M1 4DZ	
For the Respondent	MR ANDREW HILLIER
(One of Her Majesty’s Counsel)
Instructed by:
Derbyshire Constabulary Legal Services
Butterley Hall
RIPLEY
Derbyshire
DE5 3RS	

SUMMARY

Disability discrimination – Reasonable adjustments

The Tribunal found that the Chief Constable was entitled to terminate the services of a probationary constable who could not successfully complete her probationary period because certain disabilities prevented her from carrying out duties in a confrontational setting.  It was not a reasonable adjustment to expect the Chief Constable to dilute the standards required.  The EAT dismissed the appeal and held that this was a decision the Tribunal was entitled to reach.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal by Ms Hart (whom we shall call the claimant as she was below) against the unanimous decision of the Employment Tribunal sitting in Nottingham which held, in the course of determining what was stated to be a preliminary issue, that her claim for disability related discrimination and failure to make reasonable adjustments should be dismissed. 

2.	The order under which the hearing took place was as follows: 
“It was agreed that the point of principle should be dealt with as a preliminary hearing under Rule 18(7)(b) on the Respondent’s application to strike out the claim in respect of the Claimant’s dismissal on the grounds that it had no reasonable prospect of success given the  Claimant’s admission that, irrespective of the reasonable adjustments that could have been made, she could never have become a fully operational police constable, namely she could not have been exposed routinely to confrontational situations requiring restraint, arrest and detention.”

3.	The Tribunal, in our view understandably, had some difficulty in determining precisely what the order meant.  However, they identified the following two issues which they felt, and both counsel agreed, they were entitled to determine: 
“… (1) whether the Respondent’s reasons for the termination were both material to the circumstances of the particular case and substantial and, in considering that issue,
(2) whether the Respondent was under a duty to make reasonable adjustments for the Claimant which would have enabled her to complete her probation and retain her appointment as a police constable notwithstanding the fact that she could not be exposed routinely to confrontational situations.”

4.	It is important to emphasise that although the original order talks about the claim being struck out as having no reasonable prospect of success, in fact the Tribunal was not striking out in the traditional way under rule 18(7) without hearing evidence.  Here it heard extensive evidence over two days with respect to the issues in dispute. In substance it was hearing a part of the case and not a preliminary hearing, as indeed the Tribunal recognised in terms.  For this reason it seems to us that some of the authorities relating to strike out that were relied upon by the claimant, such as North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 (CA), are not relevant.  With hindsight, we have doubts whether it was in fact desirable to hive off these issues in this way, but that is now water under the bridge.

The background.
 5.	The background is as follows. Ms Hart was engaged as a probationary police constable from 14 May 2001.  The probationary period was intended to last for two years but it was extended on a number of occasions. 

6.	Her appointment was terminated, prior to the probation period being completed, on 1 July 2006 pursuant to Regulation 13 of the Police Regulations 2003. That Regulation provides as follows:
“During his period of probation in the Force, the services of constable may be dispensed with at any time if the Chief Officer considers that he is not suited physically or mentally to perform the duties of his office or that he is not likely to become an efficient or well-conducted constable.”

7.	The Chief Constable dispensed with her services because he took the view that she was not likely to become an efficient and well conducted constable.  

8.	It is common ground that the claimant suffered from a disability within the meaning of the Disability Discrimination Act 1995. She was injured following two road accidents in 2002, and suffered serious injuries requiring spine surgery.  As a consequence she was unable to carry out certain core tasks and activities set out in the Professional Development Portfolio which lays down the standards which have to be attained before the probation period can be successfully completed.   She could not demonstrate an ability to carry out certain tasks where there was a real risk of confrontation. It was for this reason that she was dismissed, having first been offered a staff post which she rejected.

9.	 The claimant contended that the Chief Constable ought to have made reasonable adjustments so as to enable her to be confirmed in her employment notwithstanding that she could not meet the required standards. However, she accepted that whatever adjustments were made, she would not in the foreseeable future be able to perform those duties of a police constable which would have exposed her to routine confrontational situations requiring restraint, arrest and detention.

The relevant law
10.	Police officers were brought within the purview of the Disability Discrimination Act with effect from 1 October 2004: see section 64A which provides that the holding of the office of constable shall be treated as employment by the Chief Constable. The Chief Constable is made liable for the actions of police officers and civilian officers working for the authority, see section 58.

11.	The concept of disability related discrimination is defined in section 3A(1) as follows:
“3A(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.”

12.	Justification is defined by section 3A(3) in the following terms:
“Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.”

13.	Section 4A(1) of the Act provides the duty to make reasonable adjustments.  it reads:
“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.”

14.	Section 18B identifies certain criteria which should be taken into account when considering what, if any, reasonable adjustments should be made, and also gives some examples of the kinds of steps which might be taken:
	“Section 18B Reasonable adjustment: supplementary

(2) 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 that step;
(c) the financial and other cost 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.
(3) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments …
(b) allocating some of the disabled person’s duties to another person; …”

15.	The failure to comply with a duty to make reasonable adjustments is itself a form of disability discrimination: see section 3A(2).  

16.	Moreover, when considering the question of justification under section 3A(1), that must be tested on the assumption that any duty to make reasonable adjustments had been complied with. This is made clear by section 3A(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 had complied with that duty.” 

17.	Another provision which has been relied upon by analogy in this case is section14A which specifically deals with the position of what are termed “qualifying bodies”.  These are defined as:
“any authority or body which can confer a professional or trade qualification…”
“Professional or trade qualification” is in turn defined as meaning: 
“an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular profession or trade”.

18.	Certain duties are imposed on qualification bodies to make reasonable adjustments by section 14B, which states: 

“(1) Where –
(a) a provision, criterion or practice, other than a competence standard, applied by or on behalf of a qualifications body; or
(b) any physical feature of premises occupied by a qualifications body,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the qualifications body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.” (emphasis added.)

19.	A competence standard is defined as:
“an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.”

20.	It follows that there is no duty to modify competence standards themselves in order to cater for, or alleviate the difficulties faced by, disabled persons, even if they cannot meet that standard because of a disability.  The duty is to make reasonable adjustments which might facilitate the disabled person’s ability to demonstrate that he or she has met the required standards.

The issue in dispute.
21.	It is conceded by the Chief Constable that the claimant in this case was disabled and that her dismissal was for a disability related reason.  The Chief Constable contends, however, that the dismissal was justified.  The claimant in turn concedes that if there were no reasonable adjustments that could be made then the termination of the probationary employment was for reasons which were both material to the circumstances of the particular case and substantial. In other words, it is accepted that absent any failure to make reasonable adjustments, the termination was justified within the meaning of section 3A(1)(b) read with section 3A(3).

22.	 The point in issue for the Tribunal fell, therefore, within a narrow compass. It was simply whether the duty to make reasonable adjustments arose in the particular circumstances of this case. 
The Tribunal’s decision.
23.	In considering the question of reasonable adjustment, the Tribunal first had to identify the relevant provision, criterion or practice in issue.  It is accepted that the Tribunal fairly analysed the relevant criteria as follows:
“the Chief Constable must be satisfied that: 
(a) the probationer has successfully completed all the core competencies set out in The Probationary Development Programme (the PDP), including the execution of various duties in a confrontational setting;
(b) the probationer will be able to be a fully operational constable and will be physically and mentally competent to carry out her duties in a confrontational setting, and
the probationer is fitted physically and mentally to perform the duties of a police constable and will be an efficient and well conducted constable.

24.	The Chief Constable’s submission, which was advanced both before the Tribunal and before us, was that there were no reasonable adjustments which could be made.  It was crucial for a probationer to be able to demonstrate fitness and competence to fulfil all the duties of the office. It was not legitimate to seek to tailor an officer’s probation so as to test his or her competence only for those tasks which would not involve exposure to routine confrontational situations.  These are not simply subsidiary functions; it is a fundamental part of the officer’s duty to be involved in such situations and it would involve a misrepresentation by the Chief Constable to represent that the officer had completed the probationary period when in fact he or she had not.
 
25.	Mr Hillier further relied upon two subsidiary arguments before the Employment Tribunal.  First, there were resource issues in play, since there might be circumstances where it would be essential to be able to be able to call upon all officers in a confrontational situation.  Second, the public would be misled because they would assume that the officer had reached a particular level of competence when that was not so.
26.	Mr Hillier also drew an analogy with the duty of qualification bodies to make adjustments, which is dealt with in section 14B of the Act set out above.  This makes it plain that whilst there is a duty to take reasonable steps to seek to prevent any provision, criterion or practice substantially disadvantaging a claimant from reaching the requisite standard, the qualifying body does not have to alter the competency standards themselves.  Similarly here; the Chief Constable could not reasonably be expected to dilute the standard which the probationer had to reach.   The implications of so doing could extend beyond the particular police authority. Once the status of serving officer was conferred upon a police officer, that would be relied upon by other police authorities as a recognition that the officer had achieved the requisite standards.

27.	In the course of the argument we raised the possibility that section 14A was in fact directly applicable on the grounds that the completion of the probation period constituted at least an authorisation or recognition which facilitated engagement in a particular profession.  It seemed to us, as the argument developed, that the principal justification relied upon by the chief constable was that he was not simply an employer but was also had a wider responsibility to ensure that only officers who had demonstrated a certain standard of competence should be identified as having competed their probationary period.    

28.	If the police authorities are qualifying bodies, sections 14A and 14B would set the criteria by which to judge whether they have complied with their obligations under the 1995 Act.  However, the case was not argued directly in that way and we heard no argument about the scope of the section.  Accordingly, we simply have regard to the section as regulating a potentially analogous situation to that with which we are faced. 

29.	The claimant submitted that there was no reason why every officer should be fully equipped to carry out all the duties of a constable’s office. There are a number of officers who suffer a disability once they have qualified after completion of the probationary period.  In those circumstances, as the Tribunal accepted, the officer may be placed on restricted duties whose effect may be to relieve him or her from the obligation to be involved in any confrontational situations, or at least to limit the potential for such confrontation.  Indeed, reference was made to a document headed ‘Disability and the Police - Serving Officers’, which in terms provided that officers could be placed on restricted duties which may not require full operational fitness and could be permanent.

30.	The Tribunal rejected certain of Mr Hillier’s arguments.  They were not persuaded by the public confidence arguments which they accepted had not been tested, and they accepted the claimant’s submission that there was simply no evidence as to what the resource implications would be.  Nonetheless they adopted what they described as “a black and white approach” and concluded that, objectively viewed, no reasonable adjustment could be made, and that it was legitimate to draw a distinction between a serving officer and a probationer.  They expressed their conclusions as follows: 
“4.2 Having considered the matter at length we are of the view that the issue is one of principle, that is whether the Respondent can up to the point of certification by the Chief Constable under Regulation 13, refuse to waive the strict requirements of the PDP in so far as they relate to competencies requiring confrontational experience. The facts necessary for us to come to a decision are therefore, in our view, limited. They are confined to the fact that Ms Hart was unable to demonstrate those competencies because of her disability. Further that the Respondent refused to waive the requirements of the PDP so as to enable Ms Hart to complete her probation. The only other relevant facts are those relating to serving officers set out in paragraph 3.16 above.
We believe that those requirements necessitating training and experience in confrontational situations are an irreducible minimum in the training of a police constable. We are persuaded by the analogies that Mr Hillier draws with Section 14B of the Act and the example from the Code of Practice. The excerpt from the recruitment documents to which we have referred to above i.e. “There is no expectation that people who cannot fulfil a substantial part of the role will be recruited” is also persuasive. We do accept Mr Hand’s argument that policing is changing and becoming evermore specialised. Nonetheless we still feel that a certain standard has to be reached and that is the standard required by the PDP and read with Regulations 12 and 13.

4.3 We also accept Mr Hillier’s submissions that there are a number of significant differences between a serving officer and a probationer. Firstly the Chief Constable is not required further to certify a serving officer’s fitness once that certificate has been gained at the end of his probation. We further accept that the purpose of the probationary period is to ensure that the probationer is fit to move on to any specialised task for which he is suited.
4.4 Further, as we have seen, Regulation 13 expressly empowers the Chief Constable to terminate the appointment of a probationer who, for whatever reason, is considered to be unfit to be confirmed as a police constable, whereas the appointment of a constable can only be terminated in accordance with a detailed procedure. We have also taken into account in reaching our conclusion Mr Hillier’s submission that in determining whether it was reasonable to waive the strict qualification requirements we should take into account that the Respondent was prepared to offer any available staff post as a reasonable adjustment. We find as a fact that that is so, see for example Mr Cragon’s letter of 2 June 2006, and we do place that matter in the balance.”

The grounds of appeal.
31.	Mr Horan, counsel for the claimant before us, has submitted as his principal ground of appeal that the Tribunal erred in approaching the concept of reasonable adjustment divorced from the particular facts.  The Tribunal approached the issue as one of principle applicable to all probationers in this category (i.e those who could not carry out confrontational duties) whereas they ought to have had regard to the position of the particular probationary constable and her relationship with the particular force.  The Tribunal was wrong to adopt what they themselves called a “black and white approach”.  This was not a case for a standard or generalised rule but rather for a careful factual analysis of the effect of making an exception for this particular probationer.

32.	Section 4A in terms requires the taking of such steps as are reasonable in the circumstances of the case, and that language simply reflects Article 5 of Directive 2000/78/EEC which the section is designed to implement.  Moreover, section 18B(2) identifies a number of potentially relevant factors to which the employer must have regard and which will vary from case to case; the approach of the Tribunal, says Mr Horan, simply ignored these matters.  Nor did they consider in terms the potential step identified in section 18B(3)(b) of transferring some functions to other officers.  This would have been done for an officer who had successfully completed probation, and it could have been done for this claimant.

33.	Mr Horan also submits that there is no conflict between regulation 13 and the obligations under the Disability Discrimination Act.  The general principle is that the Chief Constable can dismiss a probationer not physically or mentally able to perform all the duties of the job; but that must be subject to any obligations imposed by the 1995 Act.

34.	Mr Hillier submits that the Tribunal did not err in law.  The tribunal analysed the case in the light of the submissions advanced to them which were in turn dictated by the issues identified.  It was not disputed that it would in principle have been possible to place the claimant in a position as a serving officer where she would not have been involved in routine confrontation.  Accordingly, many of the issues that might have been relevant to the question of adjustment, such as whether such work could be found, and the effects on the operation of the force, did not need to be considered.  

35.	The issue which was starkly presented to the Tribunal was whether, even assuming that a job could be found for the claimant, it was reasonable to expect the Chief Constable to modify the requirements of the PDP so as to allow that.  (It was not apparently contended that the claimant could be retained indefinitely as a probationer.) What was sought was not merely a minor modification of the PDP requirements but a fundamental adjustment relieving the officer from the obligation to achieve competence with respect to a core part of the duties.  

36.	Given that formulation of the issue, the Tribunal were entitled to find that whatever the other features, it could never be reasonable to expect a chief constable to make an adjustment which would dilute the standard of competence in such a major way.  The claimant was in substance asserting that the Tribunal should have adjusted or waived the requirements so as to limit them to an assessment of competence with respect to restricted duties only, and the Tribunal was entitled to find that, irrespective of any other considerations, it was not reasonable to expect the employer to dilute standards in that way.  

37.	The Tribunal were entitled to say that the ability to deal with confrontational situations lay at the heart of the officer’s role, and that a serving officer was fundamentally different to a probationer.  Indeed, Mr Hillier suggests that if the claimant were correct, then logically the police authority should be obliged to recruit as potential officers disabled persons who it knew could never be competent to do the full range of duties.   

38.	Furthermore, even if section 14B were not directly applicable, it provided an analogous situation which the Tribunal were entitled to treat as relevant. It showed that bodies establishing qualifications were under no obligation to make an adjustment which would lower standards, merely to take reasonable steps to adopt procedures which will not substantially disadvantage a disabled person in reaching those standards, or demonstrating their ability to do so.  This might, for example, require extra time for a dyslexic worker to take examinations to demonstrate his or her competence (as in Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763), but it would not compel a qualifying body to allow a disabled person to represent that he or she had reached a particular standard of competence which they had not in fact attained.

Conclusion. 
39.	Like the Tribunal, we have not found this entirely straight forward, but we have concluded that the Tribunal did not err in law.   

40.	In our judgment, the crucial feature here is that the police authority are in effect playing two different roles.  They are the employer, but in determining whether the probationary period has been satisfactorily completed they are also assessing a standard of competence against national criteria.  Regulation 12 of the Police Regulations makes it plain that a constable who has completed satisfactorily the probation period will be able to transfer to another police force without being required to do a further period of probation.  In effect a police authority is conferring a formal status on the officer by representing that he or she has completed the probationary requirements.  

41.	It is this latter element which lies at the heart of the Chief Constable’s submission, and which in our view dictated the Tribunal’s conclusion.  Had this been the case of an employer without the regulatory function, then as Mr Hillier conceded before us, and did not apparently dispute before the Tribunal, it would have been possible for the police authority to have found a job for the claimant performing some of the duties of a serving constable but without carrying out routine confrontational duties.  Those functions could have been transferred elsewhere. For this reason, we agree with him that it was not necessary for the Tribunal to explore issues such as whether this particular police force could function effectively and without undue increased expenditure if an alternative job was found.  The police authority was able to find jobs for a disabled officer who had completed his or her probation, and could in principle have done so for someone who had not.  

42.	The reason why the Chief Constable claimed that it was unreasonable to employ the claimant in this way was that in order to do so he would have had to lower the standard normally expected of a probationer, and as a consequence would have misrepresented her status to others, especially other police authorities.  The Tribunal held that objectively viewed, this was a reasonable position for the Chief Constable to have adopted.

43.	We see no error of law.  We recognise that in an appropriate case the duty to make a reasonable adjustment could extend to adjusting the existing job or finding a suitable alternative job. That much is made plain by the decision of the House of Lords in Archibald v Fife Council [2004] ICR 954.  But here it was first necessary to treat the claimant as competent to carry out the duties in question, and that was the requirement which the claimant could not meet and the Chief Constable was not willing to modify the standards required so as to represent that she could.

44.	 We think that the provisions relating to qualifying bodies do provide at least a valuable analogy even if they are not directly applicable.  It is reasonable to insist on standards being maintained.  The Tribunal was entitled to accept that the position of someone who has passed the probationary requirements is different from someone who has not; the former has at some point demonstrated the ability to carry out all the relevant tasks and, as the Tribunal stated, the Chief Constable is not required further to certify his or her fitness.  That is not the situation with a probationer.

Disposal.
45.	For these reasons, therefore, in our view this appeal fails.  The Tribunal will of course still have to consider the other outstanding claims.