Todd v Chief Constable of the Police ... Michael Cox [2012] NIIT 00933

THE INDUSTRIAL TRIBUNALS

CASE REF: 933/11

CLAIMANT: Robert Todd

RESPONDENTS: 1. Chief Constable of the Police Service of

Northern Ireland

2. Michael Cox

DECISION

The unanimous decision of the tribunal is that the claims of unlawful disability discrimination are dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr B McGuire

Mr R Gunn

Appearances:

The claimant appeared in person and was unrepresented.

The respondents were represented by Ms N Murnaghan, Barrister-at-Law, instructed by Crown Solicitor’s Office.

Background

1. The claimant is a police sergeant. He was suspended from duty on 1 May 2008 to 10 February 2010 pending disciplinary proceedings. No sanction was imposed on the claimant as a result of those disciplinary proceedings. The claimant was absent from duty on either sick leave or discretionary leave until he eventually returned to duty in 2011.

2. On 31 December 2010, the second-named respondent, who is the PSNI Deputy Director of Human Resources, sent an e-mail to the District Commander or ‘A’ District, where the claimant’s line manager was based. That e-mail contained a statement that the claimant should not enter any police building without prior agreement. He was not denied access to police buildings but was required to obtain prior agreement before entry. That restriction was communicated to the claimant by his line manager on or about 4 January 2011. The second-named respondent received further medical advice on that same day and the restriction on the claimant’s access to police buildings was immediately lifted. The only practical effect of the restriction was that the claimant had to notify his line manager on one occasion, on or about 4 January 2011, of a proposed visit to one police building.

3. The claimant’s attendance record was discussed at an Absence Management Panel (‘AMP’) within the PSNI on 14 September 2010. At that AMP, Ms Rachel Graham, the Head of Human Resources in ‘A’ District, used the word ‘political’ or ‘politics’ to describe the background to the claimant’s absence from duty.

4. The tribunal claim form completed by the claimant was not particularly clear; but the substance of the claim was that the claimant had been subjected to unlawful disability discrimination in two respects:-

(i) the restriction which had been placed by the second-named respondent on the claimant’s access to police buildings; and

(ii) the use of the word ‘political’ or ‘politics’ by Ms Graham during the AMP on14 September 2010.

The issues

5. The issues to be determined by the tribunal were:-

(i) Was the claimant, on the relevant dates, ie 14 September 2010 or between 31 December 2010 and 4 January 2011, disabled for the purposes of the Disability Discrimination Act 1995 (‘the 1995 Act’)?

(ii) If so, was the claimant subjected to unlawful disability discrimination by either the brief restriction on his access to police buildings or by the use of the word ‘political’ or ‘politics’ by Ms Graham on 14 September 2010?

The hearing

6. The witness statement procedure was used during the hearing, in accordance with directions given in the case-management process. Each witness adopted their witness statement as their evidence-in-chief and moved immediately to cross-examination and re-examination. The tribunal heard evidence from the claimant, and on his behalf, Constable T Purcell, a Police Federation representative, Clare McFarlane, a HR Manager in ‘A’ District, and Inspector C Black, a Police Federation representative who had been part of the AMP Panel. The witnesses called by the first-named respondent were Mr J Stewart, the Director of Human Resources in PSNI, Mr M Cox (the second-named respondent), the Deputy Director of Human Resources in PSNI, Superintendent M Purdon, who chaired the AMP on 14 September 2010 and Ms R Graham, Head of Human Resources in ‘A’ District. Four reports from Consultant Psychiatrists were handed into the tribunal by the claimant. The evidence was heard over three days from 9 January 2012 to 11 January 2012 and oral submissions were heard on 12 January 2012. The decision was reserved.

Particular mention should be made of the three Lever Arch folders of documentation presented to the tribunal. The folders contained a mass of irrelevant documentation; pages were not properly numbered sequentially; many documents appeared multiple times in the folders; the documents were not in chronological sequence. All of this occurred despite clear case-management directions. If this tribunal is ever presented with folders like this again, the hearing will be delayed until the bundle is presented in a proper form and there may be costs implications for the offending party.

Relevant law

Disability

7. The question of whether the claimant was disabled for the purposes of the Act has to be determined by reference to the dates of the alleged acts of discrimination – Cruickshanks v VAW Motorcast Ltd [2002] IRLR 24.

8. Section 1(1) of the 1995 Act provides:-

“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse affect on his ability to carry out day-to-day activities.”

Day-to-day activities are affected if the impairment affects mobility, manual dexterity, physical co-ordination, continence, the ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to learn, concentrate or understand or perception of the risk of physical danger.

9. The fact that an individual may or may not have been disabled at a particular point of time does not necessarily mean that that individual is disabled for the purposes of the 1995 Act at a different point in time.

10. The onus is on the claimant in every case to prove that, on the relevant dates, when the alleged acts of discrimination took place, he had in fact been disabled for the purposes of the 1995 Act. In Ross v Precision Industrial Services Ltd and Du Pont [NICA 2005], Kerr LCJ stated at Paragraph 39:-

“The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the appellant.”

11. The 1995 Act provides at Paragraph 6 of Schedule 1 that an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities but for the fact that measures (including, in particular, medical treatment and use of other aids) are being taken to treat or correct it, is to be treated as having that effect.

12. In Kapadia v LBC of Lambeth [2000] IRLR 699, it was stated that:-

“It was not enough for a claimant to maintain that he or she would be badly affected if treatment were to stop – proof, preferably of an expert medical nature is necessary.”

13. In Goodwin v Patent Office [1999] IRLR 4, the EAT directed tribunals to answer four questions in determining whether an individual is disabled for the purposes of the 1995 Act:-

(a) Does the claimant have an impairment which is either mental or physical?

(b) Does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 and does it have an adverse affect?

(d) Is the adverse effect long-term?

14. It was therefore up to the claimant to establish, on the balance of probabilities, that he was disabled for the purposes of the 1995 Act at the relevant times, ie on 14 September 2010, or between 31 December 2010 and 4 January 2011.

15. The claimant was aware that this was a specific issue which had to be determined by the tribunal. It was the first issue on a list of issues which had been identified in the case-management process. That list of issues had been attached to the Record of Proceedings of the Case Management Discussion on 5 September 2011. A copy of that record had been sent to both the claimant and the respondents in September 2011.

16. The claimant did not, however, address this issue at all in his witness statement and he was not cross-examined by Ms Murnaghan in relation to whether he had been, on the relevant dates, disabled for the purposes of the Act.

17. The claimant had not properly provided copies of any medical reports to the respondents before the hearing. During the hearing, he had been prepared initially only to furnish medical reports to the respondents’ representative on the basis that those reports could not be shown to the respondents. When it was pointed out that that proposal was unsatisfactory, the claimant agreed to the disclosure, at a late stage in the hearing, of the four separate Consultant Psychiatrist reports. Since the claimant, as an unrepresented litigant, may not have initially understood that the onus of proof rested upon him to establish that he had been disabled on the relevant dates, the tribunal extended him considerable latitude in this regard and allowed the reports to be admitted in evidence. The respondents then declined the opportunity to cross-examine the claimant on those reports.

18. It was common case, that:-

(i) The claimant has suffered from a chronic depressive illness at various points in the recent past. This condition was described by Dr McGarry in one report as chronic dysthymia. Dr McGarry described this condition as ‘low grade depressive symptoms’.

(ii) The disciplinary action, and the claimant’s suspension, arose because of the contents of a written statement completed by the claimant on or about 29 April 2008.

(iii) That written statement contained remarks which were construed by the respondents as threatening. The statement also made frequent references to depression and suicidal ideation.

(iv) The disciplinary process led to the imposition of no sanction. This decision was taken because of the claimant’s mental ill-health when the statement had been written in April 2008.

(v) The claimant has received treatment from his GP and a local mental health team and this treatment continues to the present day.

(vi) The respondents’ Occupational Health Adviser, Dr Crowther, had, at least one point in these proceedings, been of the view that the claimant had been disabled for the purposes of the Act.

19. The four Consultant reports do not bear directly on the impact that the claimant’s depressive condition had on his day-to-day activities for the purposes of the Act on the relevant dates. The consultant reports were compiled on various dates in 2009 and therefore substantially predate the relevant dates. Furthermore, the reports did not consider whether the claimant, even in the course of 2009, had been disabled for the purposes of the Act. Depressive illnesses can vary greatly in their severity and on their impact on an individual. There is no medical evidence before the tribunal in relation to the administration of medication to the claimant on the relevant dates and therefore no evidence before the tribunal upon which the tribunal could properly reach any conclusion on the deduced effect, ie the effect on the claimant if any medical treatment were discontinued. Furthermore, there is no evidence before the tribunal on which the tribunal could properly reach any conclusion on the risk of recurrence.

20. The tribunal therefore concludes that the claimant has not discharged the onus which has been placed upon him by legislation in this regard and the tribunal is not in a position to conclude, on the balance of probabilities, that the claimant was, on the relevant dates, ie on 14 September 2010 or between 31 December 2010 and 4 January 2011, disabled for the purposes of the Act. The claim must therefore fail on this point.

However, in case the tribunal is wrong on the issue of disability, the tribunal has decided to go further in this decision and to address the substance of the complaints which have been brought before the tribunal by the claimant.

Alleged unlawful discrimination

Restriction of the claimant’s access to police establishments

21. It was common case that the claimant had a history of mental ill-health and that he had experienced and had expressed suicidal thoughts.

22. When the claimant’s disciplinary suspension came to an end on 10 February 2010, the claimant commenced a period of sick leave. When that came to an end, the PSNI, in or about July 2010, had to find a new posting for the claimant. The initial proposal was that the claimant should be posted to ‘D’ District. A clause in a settlement agreement relating to earlier tribunal proceedings provided that the claimant should not be posted to ‘A’ District on his return to duty. The claimant later chose to modify this to provide that he could be posted to ‘A’ District but not to a particular station within that District, ie Grosvenor Road.

23. There were significant medical restrictions on the type of duty that the claimant was permitted to perform on his return. In the light of those significant restrictions, the only available vacancy for the claimant in ‘A’ District was in Grosvenor Road, the station to which he could not be posted.

24. Rachel Graham was responsible for co-ordinating the effort to find the claimant a suitable posting in ‘A’ District. When Ms Graham reviewed the medical evidence following a very tense meeting with the claimant on 19 July 2010, Ms Graham noticed that the Occupational Health Physician, Dr Crowther, who had advised that the claimant could return to ‘A’ District, had been under the mistaken impression that all those individuals who had previously been, or had felt, threatened by the claimant had left ‘A’ District. Ms Graham was aware that a particular police sergeant (Sergeant ‘G’) remained in ‘A’ District and that that Sergeant ‘G’ was concerned at the prospect of the claimant’s return and at the implications that his return might have for his security and the security of his family.

25. Sergeant ‘G’ had been the subject of what PSNI had regarded, and in the opinion of this tribunal had reasonably regarded, as a serious threat by the claimant. That threat was contained in the written statement which had led to the disciplinary proceedings against the claimant and his disciplinary suspension.

26. Ms Graham had also received an e-mail from Chief Inspector Freeburn in relation to an incident at Tennent Street Police Station. This incident had occurred immediately after the tense meeting between the claimant and Ms Graham on 19 July 2010. The claimant had been seen on the roof of the police station in what had been described by an inspector based at the station as a ‘diving position’. The claimant’s description of this incident was that he had been considering a charity abseiling event and had been simply looking for potential abseiling points on the roof of the station. Whatever the truth of this particular incident, Ms Graham was officially informed of the incident by a senior officer, Chief Inspector Freeburn, and was concerned, as indeed was Chief Inspector Freeburn, given the claimant’s medical history, at the possible implications of his actions.

27. Ms Graham had also been told that the claimant had been visiting his ex-partner at Tennent Street where she worked and that these visits were upsetting his ex-partner. Ms Graham had also been told that the claimant had left two wrapped apples for two particular male officers who were working with his ex-partner. It had been suggested to Ms Graham by a police inspector and by Chief Inspector Freeburn that these gifts were in fact a veiled threat by the claimant against these two male officers. The inspector and the chief inspector advised Ms Graham that the claimant was known to be an archery instructor and they referred Ms Graham to a possible allusion to the ‘William Tell’ story. The claimant denied that he had been upsetting his ex-partner in Tennent Street or that he had left apples as gifts for the two male officers.

Again, whatever the truth of these alleged incidents, Ms Graham was concerned at the potential implications given the claimant’s medical history.

28. The claimant had withdrawn his permission for Dr Crowther to access the claimant’s medical notes for the purposes of preparing advice for PSNI. The claimant had also requested a further psychiatric referral.

29. Ms Graham told the claimant on 26 July 2010 that she was asking Dr Crowther for further medical advice in relation to the claimant.

30. On 6 October 2010, Ms Graham met the second-named respondent to discuss the claimant’s situation. On 26 November 2010, Chief Inspector Grimshaw wrote to the second-named respondent to express concern at the proposal to return the claimant to duty in ‘A’ District. The second-named respondent then sought an assurance from Dr Crowther that the claimant did not pose a risk to himself or to his colleagues should he return to duty.

31. On 30 November 2010, Dr Crowther told the second-named respondent that because of the incomplete medical evidence available to him, he was unable to give that assurance.

32. On 31 December 2010, the second-named respondent wrote to the District Commander of ‘A’ District. That letter included the statement that the claimant should not enter any police establishment without prior agreement. That decision was later communicated to the claimant in early January 2011, probably 4 January 2011, by the claimant’s inspector.

33. Shortly thereafter, Dr Crowther confirmed to the second-named respondent that he had received further psychiatric advice and that it was no longer necessary to restrict the claimant’s access to police stations. On receipt of that confirmation, the second-named respondent immediately lifted the restriction.

34. As indicated earlier, in this decision, the restriction on the claimant’s access to police stations was not a complete restriction. All it required was that the claimant should seek prior agreement before entering any police station. The claimant was not on duty during the relevant period and any visits to police station would have been purely social in nature or to obtain advice from Federation representatives. The restriction, such as it was, remained in place for less than a day from its notification to the claimant and had (minimal) effect on only one social visit to a police station by the claimant.

35. The tribunal is, to put it mildly, surprised that such a trivial matter has been brought before an industrial tribunal for adjudication. It should be noted that the claimant apparently thought that the complaint to this tribunal, which he had drafted, covered a much wider range of issues, eg victimisation, failure to secure a proper posting in good time, failure to implement an earlier settlement, etc. However the claim did not encompass those issues. The only two issues properly before this tribunal are those identified earlier in this decision as issues to be determined.

36. The decision will turn to the other issue shortly; however, in relation to the restriction on the claimant’s access to police stations which was imposed by the second-named respondent, that complaint is dismissed.

37. The tribunal is satisfied that the second-named respondent was not motivated by the claimant’s medical condition. Therefore, even if the claimant had proved that he had been ‘disabled’ on the relevant dates, a complaint of direct disability discrimination could not have succeeded. There are no grounds on which a tribunal could reasonably draw an inference of such discrimination. The second-named respondent was concerned about any risk to the claimant and about any risk to the safety of the claimant’s colleagues on his return to duty. Given the claimant’s medical history, given the reports concerning his behaviour in Tennent Street and given the incomplete medical evidence available to Dr Crowther, the second-named respondent was entitled to be extremely cautious in this matter. He was entitled to take the view that, without a clear assurance from Dr Crowther, he should err on the side of caution and should take what to this tribunal seems to be an entirely sensible precaution, by requiring the claimant to seek prior agreement from his line management before entering any police station.

In terms of ‘disability-related discrimination; rather than direct disability discrimination, an appropriate comparator would be another police officer who was not on duty and who was perceived, pending full medical advice, to pose a potential risk to himself or colleagues, and who was not disabled.

Even if the claimant had established that he had been disabled on the relevant dates, there are no grounds on which a tribunal could reasonably draw an inference that such a comparator would have been treated differently by the second-named respondent.

The reference by Ms Graham to ‘political’ or ‘politics’

38. It is difficult to understand the nature or purpose of this particular complaint. There is no complaint of political discrimination before this tribunal. The claimant does not suggest that Ms Graham’s use of the term was an act of discrimination on the ground of political opinion. He suggests instead that it was in some way either indicative of disability discrimination on the part of the second-named respondent or that it was, in some way, an act of disability discrimination in its own right. It is not entirely clear which argument he was pursuing.

39. The tribunal has already concluded that the claimant has not proved that he was disabled at the relevant time for the purposes of the Act. That conclusion disposes of this complaint before the tribunal and that complaint is dismissed.

40. For the sake of completeness, the tribunal is satisfied that Ms Graham was ill during the AMP on 14 September 2010. Superintendent Purdon confirmed that this was the case and also confirmed that he had to chair the panel meeting to assist Ms Graham. There were a number of cases to be considered and each of those cases concerned police officers whose attendance had been thought by the relevant HR manager to be unsatisfactory or potentially unsatisfactory. Following the panel’s decision in relation to another officer, whose case was considered before that of the claimant, to regard substantial absences following a sporting injury as satisfactory, Ms Graham changed her mind about the correct approach to the claimant’s case. She stated to the AMP that she now felt that the claimant’s attendance should also be regarded as satisfactory. She was challenged by Inspector Black as to why she had changed her mind. Ms Graham, in an attempt to explain the long background to the sick absences, which had followed the disciplinary suspension and disciplinary process, used the word ‘political’ or ‘politics’. This was a poor choice of words and in the opinion of the tribunal indicated nothing more than confusion on the part of Ms Graham following the challenge from Inspector Black when she was ill and tired. However that choice of words is interpreted it could not, on any reading, amount to unlawful disability discrimination.

Vice President:

Date and place of hearing: 9 – 12 January 2012, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Todd v Chief Constable of the Police ... Michael Cox [2012] NIIT 00933_11IT (03 February 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/00933_11IT.html Cite as: [2012] NIIT 00933_11IT, [2012] NIIT 933_11IT

Industrial Tribunals Northern Ireland Decisions