Judge raises contradiction in the rights afforded to police

A Court of Appeal judge has highlighted an apparent contradiction in the right of police officers to take legal action under the Equality Act 2010.

Lord Justice John Laws last week found in favour of the Met in an employment tribunal appeal.

An officer who suffered from post-traumatic stress disorder (PTSD) after being assaulted was involved in an incident while drunk on a night out which led to her arrest and dismissal.

The officer – named in court only as ‘P’ – said the misconduct panel which ended her career in 2012 had been guilty of disability discrimination because it failed to take her PTSD into account.

She admitted most of the allegations against her but said her condition – and a lack of support from the force – was responsible for her behaviour.

Lord Justice Laws dismissed the specific appeal because police misconduct panels are immune from legal action such as describing them as discriminatory.

But he said: “I have been troubled by a particular feature of the case. If I am right, it would appear that claims of discriminatory dismissal brought by police officers, where the effective dismissing agent is a disciplinary panel such as was convened here, will not be viable in the Employment Tribunals; yet parliament has legislated to allow such claims to be made.

“Parliament, however, must have passed the Equality Act 2010 in the knowledge of the Heath judgment [which set the precedent that police misconduct panels are immune from being sued for discrimination], and included no provision to remove the cloak of immunity from the disciplinary panels.”

Police officers are not employees so cannot sue for unfair dismissal.

Commenting on the ruling, which his firm had no connection to, solicitor Jonathan Goolden, a partner at Wilkin Chapman, told PoliceOracle.com: “The judge in this case has upheld the view that you can’t take legal action against a misconduct panel because it’s a judicial tribunal but he has highlighted that you can’t give a right to a police officer to sue for discrimination under the Equality Act and then prevent them being able to action a claim.”

(Original article published by Police Oracle on 25/01/16)

Failure to explore alternative deployment options for disabled officers places them at “substantial disadvantage”, association claims.

Forces that dock disabled officers’ pay without first trying to make reasonable and alternative adjustments to enable them to continue in their role could face a string of legal challenges, it has been suggested.

Following the Home Secretary’s decision to ratify the Police Arbitration Tribunal’s recommendation concerning officers on restricted duties, the Disabled Police Association has warned that forces could open themselves up to legal challenges if alternative avenues are not first pursued.

The ruling, which follows Tom Winsor’s review of police pay and conditions, means officers who cannot complete the “full range of duties of a police officer” will be regarded as being on restricted duty.

As a result, those placed on restricted duties will have their ability to exercise police powers reviewed after one year. If they are not fully deployable, their pay will be reduced by £2,922.

In addition, those who are deemed permanently disabled and therefore not fully deployable could be retired on the grounds of incapability or poor performance.

During Police Negotiating Board (PNB) discussions the Staff Side, which includes the Police Federation, said that the definition, which was put forward by the Official Side, could result in cases brought by officers under the Equality Act.

Andy Garrett, Vice-Chair of the Disabled Police Association, said that alternative deployment options and re-training must be explored before pay is reduced, in line with provisions within the Act.

In a statement, Mr Garrett said: “We believe that this change in regulations would amount to a provision, criterion or practice (PCP) which places disabled officers at a substantial disadvantage to non-disabled officers.

“We believe the employer would have to either make reasonable adjustments in order to eliminate or mitigate the disadvantage or objectively justify, on a case by case basis, the PCP as a ‘proportionate means of achieving a legitimate aim’.”

He suggested that adjustments, such as interventions which then enable the individual to complete either their job or a reasonable alternative role and that they are continuing to call for national guidance to be developed to enable disabled officers to continue within the Police Service.

Mr Garrett warned that forces could “open unnecessary legal challenges” in cases where line managers can use “punitive sanctions” before exploring reasonable alternatives which could allow individuals to reach the required standard of deployability.

“Let us focus on helping people do the job and not punish them for becoming (not by choice) a member of the one in six people who will become disabled during working life,” he added.

Rob Gurney, Chair of the Association said he was disappointed at the lack of support for those injured in the line of duty and the “derogatory treatment in terms of a massive pay reduction”.

Home Secretary Theresa May said that forces must make use of the reforms available to them regarding the management of officers on restricted duty. Work is currently underway to amend the Police Regulations and determinations.

Following the decision, the Federation stated that it remained concerned about the definition and “potential” pay reduction, suggesting that it could discriminate against those with disabilities. ∎