Mr J McCall v The Chief Constable of Avon and Somerset Constabulary: 1401044/2020
EMPLOYMENT TRIBUNALS
Case No 1401044/2020
Between
Mr J McCallClaimantThe Chief Constable of Avon and Somerset ConstabularyRespondent
Before
Employment Judge LeithMs Grossman (instructed by Counsel) for claimantMr Ley-Morgan (instructed by Counsel) for respondentDate 13 August 2023
JUDGMENT
The Claimant was disabled within the meaning of section 6 of the Equality Act 2010 at the relevant times (between 12 September 2018 and 11 November 2019).
REASONS
[1]The Claimant claims disability discrimination.[2]A Preliminary Hearing for Case Management was conducted by Employment Judge Bax on 3 October 2022. He listed the case for an open Preliminary Hearing, to consider the question of whether the Claimant was, at all times material to the claim, disabled by reason of mental health issues within the meaning of s.6 and sch.1 to the Equality Act 2010.[3]The issues to be considered at this hearing were set out in more detail in the list of issues at EJ Bax’s CMO, as follows: “2.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:2.1.1 Whether the Claimant had a physical or mental impairment. [the Claimant relies on] mental illness, consisting of PTSD type symptoms, low mood and anxiety2.1.2 Did it have a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities?2.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?2.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?2.1.5 Were the effects of the impairment long-term? The Tribunal will decide:2.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?2.1.5.2 if not, were they likely to recur?2.1.6 A further issue is relevant as to whether the Claimant had a tendency to physical or sexual abuse of other persons, which is a condition not to be treated as an impairment under reg 4 of the Equality Act 2010 (disability) Regulations 2020[4]I canvassed the issues with both Counsel at the start of the hearing. At that stage, both agreed that I would only need to determine points 2.1.1 to 2.1.5, as 2.1.6 would be a matter for any final hearing (subject to my decision on disability). Both further agreed at that stage that the list of issues set out above was correct, and the relevant period was from 12 September 2018 (the date of the first misconduct allegation against the Claimant) to 11 November 2019 (the date of the Claimant’s termination). The Claimant’s position regarding the earliest act of alleged discrimination shifted somewhat during the course of cross-examination; but in the absence of any formal application to amend the claim, I will deal with the entirety of that period in my judgment. Procedure, documents and evidence heard[5]I heard evidence from the Claimant, who gave his evidence by way of a pre-prepared disability impact statement, about which he was asked questions. I had the benefit of helpful oral submissions from Mr LeyMorgan and Ms Grossman, which in Mr Ley-Morgan’s case were supplemented by written submissions.[6]The Claimant requested the following adjustments to the hearing process:a. Regular breaks while giving evidence;b. Unscheduled breaks if he found the process overwhelming;c. Permission to turn off his camera and microphone while taking a break (on the understanding that he was not permitted to discuss the case with anyone else while under oath);d. Permission to drink tea while participating in the hearing, as a calming measure;e. Permission for his Counsel to ask some open questions by way of examination in chief to ease him into the process of giving evidence.[7]Mr Ley-Morgan, on behalf of the Respondent, took no objection to the adjustments sought. Having considered the overriding objective, I made the adjustments sought. The Claimant did get upset on some occasions while giving evidence, and did require a short unscheduled break.[8]At the start of the Claimant’s evidence, it became apparent that he did not have access to a full copy of the bundle that had been prepared for the Preliminary Hearing. There was a considerable delay while the Claimant’s solicitors sought to ensure that he had the correct documents available to him. There were further technical difficulties during the hearing. The Claimant was accessing the bundle on his mobile telephone; every time he closed the bundle for any reason, he had to request a fresh password from his solicitor in order to download it and access it again. As a result of these issues, submissions were not concluded until approximately twenty past three. I indicated that I would therefore reserve my judgment. Law[9]The starting point is s.6 of the Equality Act 2010 (“EqA 2010”): “(1) A person (P) has a disability if—a. P has a physical or mental impairment, andb. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability. (3) In relation to the protected characteristic of disability – a. A reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; b. A reference to persons who share a protected characteristic is a reference to persons who have the same disability (4) This Act …applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly … a. a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability… b. a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).”[10]The Government has issued guidance under section 6(5) of the EqA 2010, entitled ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (“the Guidance”). The Guidance does not impose any legal obligations in and of itself, but the tribunal must take account of it where it is considered to be relevant.[11]The Equality and Human Rights Commission (EHRC) has published a Code of Practice on Employment (2015) (“the Code”). The Code provides guidance on the meaning of ‘disability’ for the purposes of the EqA 2010. It does not impose legal obligations but must be taken into account where it appears relevant to any questions arising in proceedings.[12]In considering the question of whether a Claimant is disabled, the Tribunal must apply the four-stage approach approved by the Court of Appeal in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694 (while remaining mindful of the need to look at the overall picture): a) Was there an impairment? (the ‘impairment condition’); b) What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’); c) Were they more than minor or trivial? (the ‘substantial condition’); d) Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[13]It is usually not necessary to consider the “impairment” condition in detail (J v DLA Piper UK LLP). The same case provides that Tribunals should be aware of the distinction between clinical depression and a reaction to adverse circumstances.[14]There is no definition of ‘mental impairment’ in the EqA 2010 but Appendix 1 of the Code provides that the term is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities.[15]“Mental impairment” should be given its “natural and ordinary meaning” (McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074).[16]Section 212 of the EqA 2010 defines “substantial” as being more than minor or trivial.[17]Paragraph 5 of Schedule 1 provides as follows: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:(a) measures are being taken to correct it, and(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.”[18]The term “normal day-to-day activities” is not intended to include activities which are normal only for a particular person, or a small group of people. The word “normal” should be given its ordinary, everyday meaning (paragraph D4 of the Guidance).[19]In considering whether an impairment has a substantial adverse effect on the ability to carry out normal day-to-day activities, it is necessary to take account not only evidence that person is performing a particular activity less well, but also of evidence that a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation (Appendix 1 to the Code).[20]Schedule 1, para. 2 of the EqA 2010 defines “long-term” as follows: “(1) The effect of an impairment is long-term if -(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”[21]In that context, “likely” has been held to mean it is a “real possibility” and “could well happen” rather than something that is probable or more likely than not (SCA Packaging Ltd v Boyle [2009] ICR 1056).[22]The effects of a recurrent impairment are to be treated as long-term if they are likely to recur beyond 12 months after the first occurrence (Guidance paragraph C6). The Guidance also says this regarding the long-term element of the definition: “It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether.”[23]The question of how long an impairment is likely to last must be determined at the date of the alleged discriminatory act, not at the date of the Tribunal hearing (McDougall v Richmond Adult Community College [2008] ICR 431).[24]The burden of showing that he is disabled within the meaning of the Act rests on the Claimant. Facts[25]I make the following findings of fact on balance of probabilities, based on the totality of the evidence before me.[26]I start by making a general observation about the Claimant’s evidence. There were two areas where Mr Ley-Morgan suggested that his evidence, given in cross-examination, ran contrary to his pleaded case.[27]The first related to the reason why the Claimant did not engage with the misconduct proceedings. The Claimant’s pleaded case was that, due to his psychiatric illness, the Claimant was unable to respond to the allegations against him or to otherwise engage in the misconduct procedure. In cross-examination, the Claimant’s evidence was that he was given advice by Occupational Health, Dr Campbell, and the Police Federation that he was not fit to do so, because he would not be able to answer the questions in full. While the answer he gave in crossexamination was rather fuller than his pleaded case, I do not consider that it was inconsistent.[28]The second area related to the first allegation of misconduct, which was said to have taken place on 12 or 13 September 2018. The Claimant’s Particulars of Claim said this about that allegation: “(The Claimant will say that he has no recollection of this incident)”.[29]The Claimant was directed by EJ Bax to provide further and better particulars. Within his further and better particulars, he characterised the Respondent pursuing misconduct allegations regarding that incident as being a breach of s.15 of the Equality Act 2010. He said this: “The Claimant is unable to confirm or deny the events that took place. If the Claimant is found guilty of these allegations, he will say that this conduct was due to his disability, specifically because of his PTSD/anxiety/depression. In an overwhelming situation the Claimant will verbally react.”[30]The Respondent took the point that the Claimant had not fully complied with EJ Bax’s CMO, in that he had not particularised the things arising from his disability that he said caused the unfavourable treatment. In response, the Claimant amended his further and better particulars to add this: “The Claimant verbally reacting due to the overwhelming situation is the thing arising from his disability.”[31]The Claimant’s evidence was that when he became overwhelmed and emotional, that this may lead him to have outbursts of swearing. It was suggested to him in the course of cross-examination that, if that was what had happened on 12 or 13 September 2018, it was surprising that he had not discussed it with his GP or any other medical professionals at the time. The Claimant’s evidence was that he could recall the incident on 12 or 13 September, and that he agreed he had sworn at the PCSOs as alleged. When it was put to him that that was inconsistent with his pleaded case, his evidence was that he didn’t know why the further and better particulars said what they did, and he did not write the document. His evidence was that the incident was, as he described it, just banter with a fellow exserviceman.[32]That is a significant departure from the Claimant’s pleaded case. He had made, in three different documents, a factual assertion regarding his recollection of events from which he departed immediately in crossexamination. That does, inevitably, adversely impact my view of the credibility of the Claimant’s evidence before me. I will deal with specific aspects of Claimant’s evidence as it arises in the context of my reasons.[33]The Claimant was a serving Police Officer between 15 September 1997 and 11 November 2019. Prior to his Police service, the Claimant served in the Royal Navy.[34]The Claimant was suspended from duty due to misconduct allegations on 21 December 2018. The allegations related to:a. An incident which took place on 12 or 13 September 2018, involving two PCSOs.b. An incident (or rather a series of incidents) at a work Christmas party on 13 December 2018.[35]The Claimant’s evidence was that he has suffered with his mental health for several years, but that it took a particular downturn in 2014.[36]The Claimant’s GP records were in evidence before me. They were heavily redacted. The Claimant’s evidence was that he did not know what was under the redacted sections, as the redaction had been carried out by his solicitors. EJ Bax’s CMO provided that, while the Claimant was required to disclose his GP records, he could blank out “anything that is clearly not relevant”. The Respondent did not, before me, suggest that the Claimant’s solicitors had been overly heavy-handed in their redaction or had redacted material that ought not to have been redacted. I proceeded on the basis that the redacted portions were therefore irrelevant to the question I had to determine.[37]The Claimant’s GP records showed that in 2014 he was signed off work by reason of “emotional upset”. He was referred for counselling.[38]On 6 November 2014 the Claimant contacted his GP surgery. He was described as very upset and tearful. The notes recorded that he had just moved out of the family home.[39]On 23 March 2015 the Claimant’s GP notes recorded that he had been in touch with the Mental Health Crisis Team as he was in crisis and needed help. He received a crisis intervention. He was diagnosed Mirtazapine to reduce anxiety, although the notes recorded that he was not keen on counselling.[40]The Claimant was seen in the emergency clinic on 13 April 2015. This followed an incident where he had made preparations to take his own life, although he had not followed through. The assessment notes noted that the Claimant’s mood was subjectively and objectively low, his appetite was affected, and his sleep was poor. This followed the Claimant’s relationship further breaking down, and him being asked to leave the family home again.[41]The Claimant was hospitalised at Rowan Ward. He was discharged on 17 April 2015, but with follow-up support from the crisis team. The discharge notification from Rowan Ward indicated that no ICD10 diagnosis had been given, and the Claimant was not clinically depressed. It noted that the Claimant was admitted following a suicide attempt. The Claimant was prescribed Conazepanm, Zolpicleum (7 days worth of each) and Ierothyroxine. He was signed off work, with the reason given as “emotional upset”.[42]On 22 March 2016 the Claimant’s GP notes recorded that he had been sent home from work due to anxiety/emotional upset. The records reported that he was feeling low, anxious and hopeless. He was diagnosed mirtazapine 15mg (28 days). The GP notes recorded the problem as “anxiety with depression”.[43]The Claimant was reviewed on 19 April 2016. The problem was again recorded as “anxiety with depression”. His dose of Mirtrazapine was increased to 30mg (28 days).[44]The next relevant entry was on 22 June 2016, when the Claimant was singed off work by reason of essential hypertension.[45]On 22 September 2016 the Claimant had a telephone consultation with his GP. The diagnosis was recorded as anxiety/depression. He was prescribed Mirtrazapine.[46]He was reviewed on 13 October 2016. He indicated that he no longer wished to take Mirtrazapine, and that he was feeling better and was ready to return to work.[47]On 5 January 2017 his medical records noted that he was “clearly not really engaging at the moment but mental health may be affecting this. Wait and see if he presents”. That was between a number of redacted entries (which I infer related to a condition which is not the claimed disability).[48]The next unredacted entry on the Claimant’s GP records was for 23 May 2018. It noted that he referred to “massive stress at work”. It noted also that he was on Ramipril 5mg. It was not clear from the medical records before me when the Claimant had first been prescribed Ramipril.[49]On 15 July 2019 the Claimant saw his GP again. The majority of the records for that visit were redacted, which I take it to mean they were for a condition not relied upon as a disability within these proceedings. The notes recorded that he was very emotional and did not see the point of life.[50]On 16 July 2019, the Claimant attended his GP. The problem was described as “stress related problem”. The notes recorded that the Claimant had been suspended from work and was not sleeping. The notes indicated that the Claimant was unhappy with Mirtrazapine that he had been prescribed previously. The Claimant was prescribed Zopiclone 7.5mg – described in block capitals as “occasional use for sleep”.[51]On 1 August 2019, the Claimant attended his GP again. The notes described the problem as “anxiety with depression”. The Claimant was prescribed Ramipril and Citalopram (28 days in each case).[52]On 19 September 2019, the Claimant attended his GP again. The notes said this: “In crisis. Crying++ [redacted section]. Thoughts jumbled. Suspended from the Police, not sleeping, hearing coming up in November. Divorced, no family, always got his support from talking to police but not has been told to have no contact with them as suspended. Keeps re living attending hangings and significant RTA’s, heads rolling off etc. Seems to have significant post traumatic stress. Tried to hang himself in 2014. Ran out of citalopram 10 days ago. The more we talk the more distressed he becomes. I am the only person he can talk to and be honest with. Has days when he doesn’t get out of bed.”[53]The Claimant was at that point urgently referred by his GP to the psychiatric crisis team. He was seen by Sarah Giles, CPN, on 30 September 2019. Ms Giles recorded that the Claimant described having low motivation, and spending three days in bed the previous week because he couldn’t face the world. She further recorded him describing not being able to sleep, having poor appetite, having difficulty concentrating and experiencing flashbacks often triggered by hearing children screaming.[54]Under the heading “Summary / Impression from Assessment”, Ms Giles recorded this: “James is suffering from a significant stress disorder as a result of him being exposed to repeated traumatic incidents whilst serving as a police officer.”[55]The Claimant was seen on 11 October 2019 by Dr Michael Campbell, Consultant Psychiatrist. In a letter to the Claimant’s GP dated 25 October 2019, Dr Campbell noted that the Claimant described sometimes waking up crying and staying in bed for long periods, although at other times he would try to socialise and keep himself busy. He recorded that the Claimant described being like that for over four years. He additionally recorded that the Claimant descried his sleep being reduced to as little as one hour per night, as he is frightened to sleep.[56]Dr Campbell described the Claimant’s mental state as follows: “Mental State Examination: He was initially very tearful and then apologetic about it. He struggled to attend Foundation House as he had attended here previously as a professional. He was able to make good rapport, generally, thought there seemed to be a lot to talk about and he seemed quite overwhelmed and anxious.”[57]Dr Campbell referred to the Claimant having witnessed a number of distressing incidents at work and recorded that this suggested a series of quite severe traumatic experiences. He suggested that the Claimant should be prescribed Quetlapine, and additionally suggested alternative antidepressants if the Claimant’s Citalopram was not successful. He did not, however, record any diagnosis.[58]On 1 December 2019, the Claimant attended his GP – the problem was described as a “essential hypertension” – the records noted that he was taking Ramipril 10mg regularly, and that his mental health was improving. The notes also recorded that he was taking Quetlapine one or two a day.[59]On 4 December 2019, following a requestion from the Respondent’s Occupational Health department, Dr Campbell provided further advice regarding the Claimant. The advice was sought regarding the Claimant’s capability to attend any formal meetings, in the context of the ongoing misconduct proceedings. At that point Dr Campbell had not seen the Claimant since their appointment on 11 October 2019. An appointment arranged for 19 November had been rescheduled as the Claimant had not felt well enough to attend.[60]Under the heading “Diagnosis and Prognosis”, Dr Campbell said this: “As I have met Mr McCall on one occasion and during that appointment he was quite distressed and emotional and did not wish to go over all his traumatic experiences, his diagnosis is still not clearly established. He clearly has about a four-year history of anxiety and increasing emotional distress and difficulty managing his feelings and coping, generally. A series of a large number of traumatic experiences, both in the armed forces and as a police officer are likely to have been the main underlying aetiology of this presentation. However, added to this, his relationship with his wife deteriorated and he said that she was unable to listen to his stories that he shared with her and this and other matters led to their relationship deteriorating. He is now going through divorce proceedings. This has all had a significant impact on him…”[61]Dr Campbell then described the Claimant’s current medication, after which he said this: “We still need to assess him further to consider whether he suffers from PTSD, although this seems likely.”[62]The Claimant’s oral evidence, in the course of cross-examination, was that Dr Campbell had told him that he had PTSD. His evidence was that this was also recorded Dr Campbell’s second letter. That is, of course, not quite what Dr Campbell said. I can, however, see why the Claimant may have believed he was being told he had PTSD given that Dr Campbell’s opinion was that it was likely that that was the Claimant’s diagnosis.[63]There were various Occupational Health records in evidence from the Respondent Occupational Health department. I will not recite all of the Occupational Health records, but of particular relevance:a. On 14 September 2017, the notes recorded the Claimant describing that he only slept for 3 or 4 hours per night, and that he suffered from sadness/depressed mood (but not all the time). The notes reflected that after attending a suicide, he went home and heard a child scream outside which caused him to freeze. The advice sent to the Claimant’s manager following that consultation noted that: i. The Claimant had been experiencing some difficulties in his personal life which resulted in him having episodes of heightened stress and anxiety at work. ii. The Claimant felt that he was suffering from PTSD, which had been triggered by attending suicide incidents, and was causing him to have periods of heightened stress and anxiety. iii. The Claimant had attended counselling previously, both internal and external to the Respondent. iv. The Claimant struggled with anxiety when attending sudden deaths, especially those involving hanging or suicide.b. On 23 January 2018, the notes recorded that the Claimant’s mental health was improving, but that he was still not sleeping.c. On 4 January 2019, the notes recorded the Claimant describing that he was generally upset all the time, and was not sleeping well as he was thinking about the investigation and not seeing his son. The notes further recorded loss of interest, lack of energy/fatigue, loss of appetite, sadness/depressed mood and difficulty concentrating.d. On 15 May 2019, the notes recorded the Claimant describing that couldn’t sleep, and was only getting two hours sleep per night.e. On 16 July 2019, the notes recorded that the Claimant described not sleeping well, feeling overwhelmed and anxiety increasing significantly.[64]The Claimant’s evidence in his impact statement was that his condition comes in waves. His evidence was that when he is suffering from a small wave, he can cope on a daily basis although it may take him longer to complete some tasks. When he is suffering from a medium wave, he must force himself to get out of bed, shower and eat, and he will find it very draining to do so, meaning that he limits social contact. When suffering from a big wave, he cannot function and completely loses contract of his thoughts and emotions.[65]His evidence was that if he saw people or places he related to traumatic events, he would become overwhelmed and emotional, and that this may lead him to have outbursts of swearing, shouting or other out of character actions. His evidence was that he manages his exposure to triggers by trying to map his journey through, for example, the town where he lives to avoid places that will trigger him.[66]His evidence was that even when having a milder episode, he would struggle to socialise (in order to avoid seeing someone who may trigger him). His evidence was that he would struggle to sleep and experience nightmares, and that his appetite could be very poor.[67]When asked specifically about the period between September 2018 and November 2019, the Claimant’s oral evidence was again that his symptoms vary. His evidence was that at his worst, he wouldn’t wash, and couldn’t cope with everyday life. He described having flashbacks to traumatic incidents, which could be triggered by (for example) a smell, or the sound of a child screaming.[68]The Claimant’s evidence was that he often avoided seeing his GP was because he they referred him to talking services, which required him to keep going over matters and re-live them. His evidence was that some of the medication he was prescribed caused him to have nightmares and suicidal thoughts. There was reference in the GP notes to medication causing side effects, although the nature of the side-effects was redacted.[69]There was no expert evidence before the Tribunal. The evidence of Dr Campbell was not expert evidence. His second letter was provided in the context that he was asked, by the Respondent, to comment on the Claimant’s condition and specifically his fitness to engage in a quasijudicial process. The purpose for which the letter was written was therefore to provide evidence to a decision-making regarding the Claimant’s condition, rather than (for example) to update the Claimant or his GP. Dr Campbell is a Consultant Psychiatrist; he is self-evidently qualified to opine on the matters on which he had been asked by the Respondent to comment. So, although I do not treat his letter as expert evidence, I nonetheless consider that it is evidence on which I can put significant weight.[70]The GP and OH records before the Tribunal are, similarly, not expert evidence. They do, however, present a contemporaneous record of how the Claimant was presenting to medical professionals, and what he was saying to them, throughout the period from 2014 onwards.[71]Bearing that in mind:a. The Claimant’s evidence that he struggled to sleep and suffered from nightmares was echoed in several places in the GP and OH records, as well as in the assessment carried out by Sarah Giles on 30 September 2019. I find that the Claimant has, as a result of his mental health, struggled to sleep sporadically since at least 2017, on occasions being able to sleep for as little as one hour per night.b. The Claimant’s evidence that his appetite was affected and that he struggled to eat was echoed in the note of the Claimant’s emergency clinical review in April 2015, the OH records from January 2019, and the assessment carried out by Sarah Giles on 30 September 2019. I find that the Claimant has, as a result of his mental health, had periods when his appetite is affected and he struggles to eat since at least 2015.c. The Claimant’s evidence that he would become overwhelmed and lose control of his thoughts and emotions was consistent with the GP notes for March 2015 (which recorded that he was in crisis), and both of Dr Campbell’s letters. Dr Campbell’s letter indicated that the situation had, at that point, persisted for four years. It is also consistent with the Claimant’s suicide attempt in 2015. I find that the Claimant has, since 2015, become overwhelmed on occasion and lost control of his thoughts and emotions.d. The Claimant’s evidence that he experienced flashbacks or would “freeze” when confronted with triggers was echoed in the OH records from 14 September 2017, the GP records from 19 September 2019, the assessment carried out by Sarah Giles on 30 September 2019. The OH records recorded the Claimant describing being triggered by a child screaming, which again was consistent with his evidence to the Tribunal. I find that, since at least September 2017, the Claimant has experienced flashbacks or “freezes” caused by triggering events. These are not only triggered by attending traumatic incidents such as suicides, but also by, for example, the sound of a child screaming or by walking past a property which he associated with a traumatic event.[72]The Claimant’s evidence was that he had, at times, disengaged from the services offered by his GP. His GP had reached the conclusion, in January 2017, that he was doing so (albeit in the context of other health issues). There was also reference in the GP records to the medication he had been prescribed causing him side-effects (although the nature of the side-effects was redacted). That is consistent with the evidence the Claimant gave. I therefore do not infer that the Claimant’s failure to engage regularly with his GP during the relevant period indicated that he was not suffering adverse effects as a result of his condition, or that the any adverse effects were trivial. Conclusions Was there an impairment?
Conclusions
[73]The conditions relied upon by the Claimant are Post Traumatic Stress Disorder, anxiety, stress, and depression.[74]The Claimant’s GP records refer to “anxiety with depression” on 22 March 2016, 19 April 2016, 22 September 2016 and 1 August 2019. They referred to a “stress related problem” on 16 July 2019. The report of Sarah Giles on 30 September 2019 referred to the Claimant having a “significant stress disorder”. Finally, Dr Campbell indicated that it was likely that the Claimant was suffering from PTSD.[75]None of those constitute a formal specialist diagnosis. But there is, of course, no need for the Claimant to be formally diagnosed with a recognised mental health condition in order to meet the impairment condition. Based on the evidence from the GP records and from Dr Campbell, I am satisfied that the Claimant had a mental impairment at all relevant times. Importantly, and bearing in mind in particular the evidence of Dr Campbell, I am satisfied that the effects the Claimant suffered were more than simply reactions to adverse life events or circumstances. What were its adverse effects [on normal day-to-day activities][76]I have found that the impairment had the following effects on the Claimant:a. His sleep was impaired; at times he was only able to sleep for as little as one hour per night. Sleeping is a normal day-to-day activity. Furthermore, an inability to sleep will inevitably have a detrimental effect on an individual’s ability to function in numerous other ways.b. His appetite was affected and he struggled to eat. Eating is, again, a normal day-to-day activity. And again, failure to eat properly will inevitably have a knock-on effect on an individual’s ability to function in other ways.c. He would become overwhelmed and lose control of his thoughts and emotions. At its most stark, this led him in 2015 to make preparations to take his own life (although he did not follow through on those preparations).d. He experienced flashbacks or would “freeze” when confronted with triggers. Mr Ley-Morgan suggested in submissions that, as this arose from situations where the Claimant experienced sudden death in his role as a Police officer, it could not be said to be an effect on normal day-to-day activities. To the extent that the Claimant was triggered by attending upsetting or traumatic calls at work, that must be right. Attending, for example, the scene of a suicide is an unavoidable part of the work of a Police officer, but it is by no means a normal day-to-day activity. But I have found that the Claimant could also be triggered by hearing a child screaming, or by walking past a property he associated with a traumatic event. Being able to walk around one’s local area is a normal day-to-day activity. So too is being in a place where one might be exposed to the sound of a screaming child. The Claimant’s impairment therefore had an adverse effect on his ability to function in public, since he faced the risk of encountering a trigger which would cause him to flashback or freeze. Were they more than minor or trivial?[77]It follows from what I have said above that, in my judgment, the effects on the Claimant’s life were more than minor or trivial. At worst, they significantly affected his ability to sleep, to eat, and to function in society. Was there a real possibility that they would continue for more than 12 months?[78]As at the start of the relevant period, 12 September 2018, the Claimant had been suffering from the adverse effects of his impairment since at least the Spring of 2015 – a period of over three years. The effects had fluctuated during that period, but they had continued for more than 12 months from the first occurrence. I therefore conclude that the long-term requirement of the test in s.6 of the Equality Act 2010 was met at the start of the relevant period. I am fortified in that conclusion by the advice of Dr Campbell, who in December 2019 indicated that the Claimant had a fouryear history of anxiety and increasing emotional distress and difficulty managing his feelings and coping.[79]It follows that the Claimant was disabled for the purposes of the Equality Act 2010 at the relevant times.
The Law
[80]The Claimant’s medical records do not show that there is any history of irritability, disinhibited behaviour or a propensity for offensive language. There is nothing in his medical records to suggest that this behaviour is linked to his PTSD.[81]The Claimant’s own evidence is that, as a coping mechanism, he will “swear out loud at myself” (Tribunal’s emphasis) [108]. The Tribunal does not accept that the Claimant has proved that his abusive behaviour towards others was part of the same coping mechanism.[82]The Tribunal does not find that the Claimant’s behaviour towards the two PCSOs on 12 or 13 September 2018, nor his behaviour in respect of inappropriate touching nor his aggressive and abusive language at the Christmas party on 13 December 2018 was something arising from his disability.[83]The Tribunal finds that the Respondent’s decision to initiate a disciplinary investigation against the Claimant was because of the Claimant misconduct. The misconduct was not because of anything arising in consequence of the Claimant’s disability. The Tribunal finds that there is no causal link between the Claimant’s disability and the instigation of a disciplinary investigation. It therefore follows that any unfavourable treatment in relation to issue 3.1.1 was not an act of discrimination. Refusing to adjourn the disciplinary hearing on 6 and 11 November[84]The Tribunal must begin with considering the “something arising” from the Claimant’s disability. The Claimant’s case is that he was unable to engage with the misconduct procedure because of his mental health. The Tribunal must therefore consider if the Claimant being “unable to engage with the misconduct procedure” is something that arises in consequence of his disability. If it is, the Tribunal must then go on to decide if the Respondent’s refusal to adjourn the disciplinary hearing on 6 and/or 11 November was a decision that the Respondent made due to the Claimant being unable to engage with the misconduct procedure.[85]The Tribunal again refers to the report of Dr Campbell at [408]. Dr Campbell’s expert opinion is that, at the time, the Claimant had “…fluctuating mental health”. Dr Campbell went on to say that the Claimant was “sometimes low in mood” but that he did not have “a persistent depressive picture”.[86]The Tribunal finds that the Claimant was aware of his Disciplinary hearing date by at least 19 September 2018, as there is a GP note [94] referring to his hearing. He must therefore have known about it to be able to inform his GP about it. He was certainly aware of the date of the hearing following the letter dated 3 October 2019 [136].[87]The Tribunal finds that in the lead up to the disciplinary, in October and early November 2019, the Claimant did have some engagement with his Police Federation representative. At some point between 21 December 2018 and 15 October 2019, the Claimant had been able to communicate his intention to retire on 15 November 2019 to Mr Henley, as this intention is stated in Mr Henley’s letter to Mr Cadman of 15 October [139 – 140].[88]When Mr Cadman said that any application to adjourn must be made properly and with cogent medical evidence, the Claimant was able to instruct Mr Henley not to disclose the medical evidence (which at that point consisted of and a report from the mental health crisis team) to the Respondent. It is clear from Mr Henley’s emails [147, 149], that this is the clear instruction of the Claimant. The Claimant said in cross-examination that he did not write these emails (which is clearly correct; they are written by Mr Henley) but went on to deny that he said the Respondent could not have access to his medical records. He says he signed papers for the release of his OH records and would have said the Respondent could have his GP records as well. The Tribunal does not find this credible as the Tribunal does not accept that an experienced Police Federation representative, unless specifically instructed to do so, would have taken the unusual step of making an application to adjourn a hearing specifically stating that the supporting medical evidence should be seen by the panel LQC alone and not by the Respondent.[89]The Claimant has not put forward any medical evidence to support his contention that he could not engage in the disciplinary process, either at the time or to this Tribunal. There is no evidence to confirm that the Claimant could not have engaged in the process by way of written submissions. The reasonable adjustment of allowing the Claimant to respond to the allegations by way of written responses is discussed later in this judgment. The Tribunal find it inconsistent that the Claimant is alleging in one of his claims that he was incapable of engaging with the disciplinary procedure in any way, and making a claim that he was not allowed to respond in writing as part of his other claims.[90]The Tribunal is sympathetic to the mental health issues that the Claimant was struggling with at the time of the disciplinary procedure, however the Tribunal finds that the Claimant had fluctuating mental health, as confirmed by Dr Campbell. The Tribunal does not agree with the Claimant’s Police Federation representative’s comment that “the Officer is not mentally capable of understanding and as such, has not read the disclosure or material contained within the evidence file”. The findings of the Tribunal are that the actions of the Police Federation representative show that the Claimant was able to engage with and give some instructions to his representative.[91]The Tribunal does not accept that the Claimant was unable to engage with the disciplinary process as something arising in consequence of his disability. In any event, however, the Tribunal went on to consider if the unfavourable treatment was because of that thing.[92]The Tribunal is not here to revisit the Police Appeals Tribunal decision relating to the decision not to adjourn. The Claimant has to prove that a reason for the treatment was the something(s) arising in consequence. It does not have to be the sole cause but a significant or more than trivial cause (Pnaiser v NHS England and Anor [2016] IRLR 170). This Tribunal therefore needs to determine if the Claimant being unable to engage with the disciplinary process was a significant cause for the decision not to adjourn on 6 November and/or 11 November.[93]The Tribunal accepts the Respondent’s argument that the Claimant’s disability did not mean that he was exempt from having to provide sufficient evidence to satisfy the LQC, Mr Cadman, that the hearing should be adjourned. The burden was still on the Claimant to provide the necessary evidence, and as he was aware of the hearing from at least 19 September onwards, he had sufficient time to do so. The Tribunal is satisfied that Mr Cadman correctly applied the law on whether or not the hearing should be adjourned, both on 6 November, and on 11 November.[94]The Tribunal is satisfied that, even if the Tribunal is wrong about the Claimant being unable to engage with the disciplinary process not being something arising in consequence of his disability, the decision not to adjourn was not because of that thing. The Claimant’s applications to adjourn were not supported by the level of medical evidence required by Levy v Ellis Carr [2012] EWHC 63 (Ch) and GMC v Hayat [2018] EWCA Civ 2796. The decision not to adjourn was made because of the lack of supporting medical evidence in the Claimant’s applications, and not because of his being unable to engage in the disciplinary process. Decision to dismiss[95]The investigation found that the Claimant’s conduct amounted to gross misconduct, and the Respondent was therefore entitled to dismiss the Claimant. In the absence of any evidence to mitigate the seriousness of the misconduct, dismissal was a reasonable option. The Tribunal accepts that the Responded was expected to act in accordance with the College of Policing ‘Guidance on outcomes in police misconduct proceedings’ (“the Guidance”). The Guidance has been set out by the Respondent, and is repeated here.[96]The Guidance states at paragraph 2.3 that the purpose of the police misconduct regime is threefold:a. maintain public confidence in and the reputation of the police serviceb. uphold high standards in policing and deter misconductc. protect the public.[97]Paragraph 4.5 of the Guidance states: “When considering outcome, first assess the seriousness of the misconduct, taking account of any aggravating or mitigating factors and the officer’s record of service. The most important purpose of imposing disciplinary sanctions is to maintain public confidence in and the reputation of the policing profession as a whole. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned.”[98]Paragraph 4.10 of the Guidance states that: “Culpability denotes the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome.”[99]The Chief Constable should take any personal mitigation into account, subject to the observation at paragraph 5.4 of the Guidance: “Personal mitigation can be taken into account, however, its impact will be limited. This applies to all types of police misconduct.”[100]The reason for this somewhat harsh approach is explained in the cases of Salter v Chief Constable of Dorset [2012] EWCA Civ 1047, and Williams v Police Appeals Tribunal [2016] EWHC 2708 (Admin).[101]In Salter, the Court of Appeal stated (as set out in paragraph 6.1 of the CoP guidance): “As to personal mitigation, just as an unexpectedly errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able so to do. However, because of the importance of public confidence, the potential of such mitigation is necessarily limited.”[102]In Williams it was stated (as per paragraph 6.4 of the Guidance): “…the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more it does so, the less weight can be given to personal mitigation.”[103]The Tribunal is satisfied that there was no causal link between the Claimant’s behaviour and his disability. The investigation established that the Claimant’s behaviour amounted to gross misconduct. Applying the Guidance to the Claimant’s case, in a finding gross misconduct, the normal sanction would be dismissal. Exceptionally, this could be mitigated, but the potential for this to happen is limited, as per the Guidance. The Claimant did not put forward any mitigation during the course of the investigation or the disciplinary process, and the Respondent was therefore unable to consider what the Claimant now says is mitigation. Even if the Claimant’s mitigation had been put forward at the time, the Tribunal finds that the effect of this would have been limited, and dismissal would have remained a reasonable option for the Respondent to take.[104]The view of the Tribunal is that the Claimant’s claim in respect of discrimination arising from disability (s.15 equality act) in respect of issues 3.1.1, 3.1.2, 3.1.3 and 3.1.4 must therefore fail. If, however, the Tribunal is wrong about the above, the Tribunal did go on to consider if the treatment was a proportionate means of achieving a legitimate aim. Proportionate means of achieving a legitimate aim[105]The Respondent says that its aims were:a. Maintaining public confidence in and the reputation of the Police service;b. Upholding high standards in policing and deterring misconduct;c. Protecting police officers, staff and the public;d. Eliminating discrimination and/or harassment on grounds of sex and sexual orientation.[106]The Claimant’s closing argument accepted that these are legitimate aims, but denied that they were referred to by the respective decision makers.[107]The Claimant argued that refusing an adjournment does not help advance the legitimate aims; that is to say, the aims would not have been thwarted if an adjournment was granted. The Claimant further argued that the Respondent had requested a medical report and so it would have been proportionate to have waited for it [410]. The Claimant stresses that Dr Campbell had not seen the Claimant before because this was an urgent referral. Dr Campbell had said he would review the Claimant in three weeks [409] and notwithstanding that there was no definite date for a prognosis, it was disproportionate to for the Respondent not to wait for Dr Campbell’s review.[108]The Tribunal does not accept this argument. The Claimant’s case for misconduct was to be heard on 11 and 12 November. The Claimant had already informed the Respondent that he was retiring on 15 November. In order to maintain public confidence in, and the reputation of, the Police service, the Police service must be seen to deal appropriately with allegations of misconduct. The Tribunal does not believe that the Claimant would have attended any disciplinary hearing after his retirement, and, with the Claimant having left the Police service, there would be no sanction that the Respondent could impose on the Claimant. The aim would therefore have been thwarted by the adjournment. It was therefore not disproportionate not to wait for Dr Campbell’s review. In any event, as there was no definite promise of a prognosis after three weeks. Dr Campbell merely said he would be seeing the Claimant again. The Respondent had no way of knowing when a prognosis could even be given. In those circumstances, the Respondent’s actions were not disproportionate.[109]The Claimant further argues that public confidence may well be undermined by refusing adjournments for police officers in a mental health crisis. The Tribunal accepts that the Respondent has an obligation to protect police officers, which includes protecting the Claimant, but this has to be balanced with its obligations to other officers and to the public. The Tribunal considered how the competing needs of the Claimant and Respondent could be balanced, and finds that the Responded owed a greater duty to other officers and to the public, and so the Respondent’s actions were appropriate and reasonably necessary.[110]The Claimant argued that there was no evidence of deliberate nonengagement. The Claimant says he was not thwarting the process or refusing to engage; he was unwell. The Tribunal accepts that the Respondent has not presented any evidence to suggest the Claimant was acting deliberately and this was not put to the Claimant. The Tribunal does not, however, find that this assists the Claimant’s case. Whether the Claimant’s non-engagement with the process was deliberate or does not alter the proportionality of the Respondent’s response.[111]The Tribunal is satisfied that, if the actions of the Respondent did amount to unfavourable treatment because of something arising from the Claimant’s disability, then the treatment was a proportionate means of achieving a legitimate aim. Reasonable Adjustment (Equality Act 2010, ss. 20 and 21)[112]The List of Issues detailed the following PCPs:a.4.2.1 A requirement that police officers must not engage in conduct which is abusive, offensive and incompatible with the principles of policing, failing which they will be subject to disciplinary action for misconduct or gross misconduct;b.4.2.2 The requirement for police officers accused of misconduct to engage with the misconduct investigation/procedure, by responding to correspondence/requests for information. It is alleged that there was a failure to make adjustments at the early stages of the investigation and on 6 and 11 November 2019.[113]The Claimant’s Opening Note stated that 4.2.2 could be better understood by reference to the Claimant’s pleaded case, which states:[114]The Force applied a provision, criterion or practice (‘PCP’) in the form of a requirement for the Claimant to have engaged with the earlier stages of the misconduct investigation/procedure and/or attend the misconduct hearing, failing which the hearing will be conducted in their absence.[115]The Respondent did not challenge this clarification of the PCP. The Respondent admits the two PCPs Substantial disadvantage[116]The Tribunal must therefore decide if the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that:[117]Regarding PCP 4.2.1, the Claimant was unable to control his moods, think or act rationally, was more prone to act as he did in late 2018 and more liable to be subject to disciplinary proceedings;[118]Regarding PCP 4.2.2, the Claimant’s disability made it more difficult for him to comply and was unable to defend the allegations.[119]The Tribunal repeats its findings in relation to discrimination arising from disability above, and in particular the finding regarding the Claimant’s behaviour towards the two PCSOs on 12 or 13 September 2018, and his behaviour at the Christmas party on 13 December 2018.[120]The Claimant was not subject to disciplinary proceedings for any allegations such as not thinking rationally, or for swearing at himself, which he said in evidence was a coping mechanism for his PTSD. The Claimant was subject to disciplinary proceedings for his misconduct towards others. There is no evidence to support that this sort of behaviour was part of the Claimant’s PTSD and the Tribunal concluded that this behaviour was not as a consequence of the Claimant’s disability. A comparator, without the Claimant’s disability, behaving as the Claimant did, would be treated in the same way as the Claimant by the Respondent.[121]The Tribunal does not accept that PCP 4.2.1 placed Claimant at a substantial disadvantage compared to someone without the Claimant’s disability in that the Claimant was more prone to act as he did in late 2018 and more liable to be subject to disciplinary proceedings.[122]The Tribunal, as noted above, disagrees that the Claimant was “unable” to engage in the disciplinary process, but that is not the Claimant’s case here. The Claimant’s case is firstly that his disability made it more difficult for him to comply (with the earlier stages of the misconduct investigation/procedure and/or attend the misconduct hearing). The Tribunal does accept that the Claimant was unable to participate in an interview during the investigation period. This is supported by evidence from Nurse Mills from OH. Reasonable Adjustments[123]The Tribunal has examined the suggested adjustments that the Claimant says could have been taken to avoid the disadvantage. 4.5.1 Not treat the Claimant’s actions as misconduct[124]The Tribunal does not accept that this is a reasonable adjustment for the Respondent to have taken. The allegations against the Claimant were serious. There was no evidence or even any suggestion from the Claimant during the investigation process that his behaviour was caused by his disability. As noted above, one of the allegations made against the Claimant was that he had said, on the night of the Christmas party, that his behaviour was acceptable because of his PTSD. Repeating the Tribunals findings above; this was only an allegation, as reported by a member of the public. The Respondent had no knowledge if the Claimant accepted or denied saying such a thing. There was no suggestion that this was the Claimant’s belief, and the Claimant never put forward that suggestion himself throughout the whole of the investigation or disciplinary process. The Tribunal is satisfied that the Claimant was able to give at least some instructions to his Police Federation representative during the investigation and disciplinary procedure, and so if he wished to make a case that his behaviour was caused by his disability then he had opportunity to do so.[125]In any event, the Tribunal does not accept that the Claimant’s behaviour towards the PCSOs or towards his colleagues at the Christmas party was as result of his PTSD. There is no medical evidence to support this, and the Tribunal repeats its findings in the section Instigation of a disciplinary investigation in December 2018, above.[126]The Tribunal finds it was not reasonable for the Respondent not to treat the Claimant’s actions as misconduct. 4.5.2 Adopted a lesser sanction[127]The Tribunal repeats its findings above; namely that the allegations against the Claimant were serious and were not as a result of the Claimant’s PTSD. The Tribunal further repeats its findings in the section Decision to dismiss above. The investigation found that the Claimant’s conduct amounted to gross misconduct, and the Respondent was therefore entitled to dismiss the Claimant. In the absence of any evidence to mitigate the seriousness of the misconduct, dismissal was a reasonable option.[128]It was not reasonable for the Respondent to adopt a lesser sanction. 4.5.3 Not dismissed the Claimant[129]For the same reasons as given above, the Tribunal finds it was not a reasonable adjustment for the Respondent not to dismiss the Claimant. 4.5.4 Allowing or assisting the Claimant to respond to the allegations in writing[130]The Tribunal accepts the evidence of DS Thomson that the Claimant was offered the opportunity, via his Police Federation representative, to respond to the allegations in writing. This is supported by the entry at [450] which says: “Offered for him to provide a written response if that would be easier on JM.”[131]The Tribunal also accepts the evidence of DS Thomson that a response to a Regulation 15 notice (which is not in itself mandatory, but was an option open to the Claimant) can be in any form. A written response from the Claimant would have been accepted by the Respondent.[132]The Tribunal notes that DS Thomson accepted in cross-examination that he ideally wanted a live interview and that he did not think about sending written questions to the Claimant. DS Thomson conceded that he could have sent bullet point style questions to the Claimant, saying that this was “an option”. This suggestion, however, was not part of the Claimant’s pleaded case as set out in the List of Issues.[133]In any event, the Tribunal finds that the Respondent was under no obligation offer a variety of methods by which the Claimant could respond to the allegations. Nor was the Respondent obliged to chase up a written response to the Regulation 15 notice, as there is no requirement that an officer ‘must’ reply to such a notice, only ‘may’. The Claimant had the option of replying and writing, and could have requested any other reasonable adjustments at the time. He did not do so.[134]The Claimant raised in his evidence that he could not respond to the allegations as he did not have full details from the Respondent to allow him to do so. The evidence of DS Thomson is that all the information to allow the Claimant to respond was sent to Mr Loker. There is an entry on the investigation log dated 28 June 2019 at [450] which says: “Interview disclosure has been prepared.” The log then goes on to say, on 8 July 2019: “Pre-interview disclosure document sent to Mark Loker.”[135]The Tribunal finds that DS Thomson’s account is credible and more probable than not. The Tribunal cannot make any finding on whether or not Mr Loker passed this information on to the Claimant, but the Tribunal is satisfied that the Claimant’s representative had all the necessary documentation for the Claimant to be adequately able to respond to the allegations, either in writing or by another means of his choosing.[136]The Tribunal is satisfied that the Claimant was allowed to respond to the allegations in writing. The Respondent therefore did not fail to offer this as a reasonable adjustment. 4.5.5 Engaging proactively with the Claimant’s Police Federation representative.[137]The Tribunal is satisfied that there are multiple entries in the investigation / disciplinary log which show that the IO was in communication with the Claimant’s Police Federation representative.[138]The Claimant has suggested that would have been reasonable to respond to Nurse Mills (via the Claimant’s Police Federation representative if needed) and ask questions about how to overcome the disadvantage. The Tribunal accept the evidence of DS Thomson that OH did not and would not share information about patients with the Respondent. It would not have been reasonable for the Respondent to pursue what adjustments could have been made with OH. The Claimant, the Claimant’s Police Federation representative or OH were in a position to advance any adjustments that were reasonable. The Tribunal accepts the evidence of DS Thomson that any proposed adjustments would have been given due consideration. It was not the part of the Respondent to suggest multiple adjustments with may or may not have benefited the Claimant.[139]The Tribunal is satisfied that the Respondent did engage proactively with the Claimant’s Police Federation representative. 4.5.6 Suspending the investigation to enable the Claimant to undergo medical treatment/rehabilitation to the point where he was well enough to engage or participate.[140]The Tribunal repeats its findings in relation to the investigation, above. The allegations against the Claimant were serious, and it was correct that they be investigated. There was no request from the Claimant or from his Police Federation representative to suspend the investigation while it was ongoing. A request to postpone was only made in relation to the disciplinary hearing [139 – 140].[141]There was also no information available to the Respondent at the time of the investigation as to when the Claimant might be well enough to engage in the proceedings. The message from the Claimant’s Police Federation representative on 24 July 2019 [452] said that he was trying to arrange a time to meet with the Claimant to “arrange for him to compile a response”. There was, therefore, no suggestion that the investigation should be suspended, and indeed it appeared from the Claimant’s Police Federation representative that the Claimant was going to be engaging with it.[142]The Tribunal is satisfied that Suspending the investigation to enable the Claimant to undergo medical treatment/rehabilitation to the point where he was well enough to engage or participate was not a reasonable for the Respondent to make, as the Respondent had no knowledge or information as to what sort of treatment/rehabilitation would have required and what the timescale of the suspension would be. The Tribunal also finds it was not a reasonable adjustment as, as far as the Respondent was aware, the Claimant was looking to prepare a written response to the allegations and was not asking for the investigation to be suspended.[143]Finally, the Tribunal is satisfied that allegations such as those made against the Claimant are serious ones and it is in the interest of public confidence in the police that such allegations should be investigated promptly. It would not have been reasonable for the Respondent to have an open-ended suspension of the investigation, and there was no evidence as to when the Claimant would be fit to resume the investigation. 4.5.7 Postpone the disciplinary hearing[144]The request for the disciplinary hearing to be adjourned was first made by Mr Henley on 15 October 2019 in a letter [140] sent to Mr Cadman and the Respondent. The grounds for the adjournment were:a. The Officers [sic] mental health is fragile; he is receiving treatment for this and fully engaging with the Somerset Partnership, Occupational Health and the NHS. The joint consensus is that the Officer would not be, at present, in a fit state or of sound mind to fully cooperate with the process.b. The Officer is not mentally capable of understanding and as such, has not read the disclosure or material contained within the evidence file.c. Because of his condition, he has not been able to receive any legal advice.d. Any continuance at such a critical stage of his treatment is understood to be detrimental to his current health and any potential recovery.[145]The Tribunal notes that there was no supporting medical evidence with this letter, nor did it say how long the adjournment was being requested for.[146]The request was based on the evidence of nurse Mills of occupational health. Her comment from 16 July 2019, stated: “In my opinion, from today’s encounter, any meeting (interview or otherwise) would negatively impact on Jamie especially if challenging or questioning.” [130] and “I advise at this time he would not be fit to attend any formal, or informal meetings, within the organisation. I believe any meeting would potentially increase his anxiety to the point where he may not be able to answer questions in a thorough or helpful manner and therefore may be disadvantaged.” [394].[147]On 18 October 2019, Nurse Mills wrote: “In my opinion I still do not feel he would be able to attend a formal hearing at this time. It is difficult to say whether he would be able to undertake an interview as his mood is fluctuating daily, so one day he may be fine with his emotions more intact, whilst another not.” [141][148]Mr Cadman replied to the request for an adjournment, stating it should be made properly and be supported by “cogent medical evidence”. The Tribunal is satisfied that the burden to provide this was on the Claimant, and it was not unreasonable of Mr Cadman to expect and application to be made in the correct manner and with supporting evidence.[149]The email from Mr Henley to Mr Cadman of 1 November [150] stated that the attached medical evidence consisted of 1) Medical report from the NHS Mental Health Team; 2) Email from Avon and Somerset Occupational Health. The email went on to say: “I have written to the Psychiatrist who is caring for Jamie. I am awaiting a response which will include a prognosis.”[150]The Tribunal is satisfied that the Claimant and the Claimant’s representative knew of the need to provide a prognosis in support of the application for an adjournment, in accordance with the guidance in GMC v Hayat [2018] EWCA Civ 2796[151]Dr Campbell’s letter of 4 November 2019 describes the Claimant as: “He presented as very emotional and often quite overwhelmed and anxious.” [408][152]The reasonable adjustment being argued for was an adjournment to obtain medical evidence to support the assertion of the Claimant’s unfitness to attend the hearing, rather than to answer or rebuff any of the allegations against the Claimant.[153]The evidence of Dr Campbell was that the Claimant “would struggle to attend a hearing” and to “represent himself”. The evidence, as available to the panel on 11 November, did not definitively state either that the Claimant was unfit to attend the hearing, or when he might be fit to do so. The Tribunal notes that this was something that was acknowledged by the Claimant’s solicitor at the time of making the application for an adjournment.[154]The Tribunal rejects the argument that the disciplinary panel should have sought a medical report in respect of the Claimant. The disciplinary panel had the benefit of a report from the Claimant’s treating psychiatrist, Dr Campbell. The Tribunal finds there was no further duty on the Respondent to seek more medical evidence than they already had.[155]The Tribunal accepts that the Respondent correctly identified and applied the law regarding the nature and standard of the evidence necessary for an application for an adjournment on the grounds of ill health to be successful. There must be evidence that the individual is unfit to participate in the hearing (Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 724). That evidence must identify with proper particularity the individual’s condition and explain why that condition prevents their participation in the hearing. That evidence should be unchallenged (Brabazon-Drenning v UKCC [2001] HRLR 6). The Tribunal notes the comments in the judgment from Levy v Ellis Carr [2012] EWHC 63 (Ch) at [36]: “Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence.”[156]There was no prognosis within the report of Dr Campbell dated 4 November 2019. Nor was there any suggestion that a prognosis would be forthcoming when Dr Campbell saw the Claimant again in three weeks’ time. The report did not give any clear indication as to when, if ever, the Claimant would be fit to take part in the disciplinary hearing.[157]The Tribunal finds that the medical evidence submitted by the Claimant in support of his application to adjourn the disciplinary hearing fell short of that which would be needed in order for it to succeed. The Tribunal does not accept that the Claimant’s disability exempted him from the requirement, established by case law, regarding the standard of his evidence.[158]The Tribunal is further guided by GMC v. Adeogba [2016] 1 WLR 3867. The Adeogba case states that, regarding whether to adjourn or proceed with a disciplinary hearing, any decision “must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public”. “…the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance.” Although this case is in respect of a disciplinary hearing for a medical practitioner, not a police officer, the Tribunal is satisfied that the same principles apply. Although the Tribunal is satisfied that the Claimant was not deliberately trying to frustrate the process, the Tribunal is satisfied that, if the hearing had been adjourned, the Claimant would have retired and would not have taken any further part in the disciplinary process.[159]The Tribunal concludes that the panel correctly applied the legal principles applicable to application to adjourn on health grounds. It was reasonable for the panel to conclude that the Claimant had not provided sufficient information to support his application. The panel did allow that the application could be renewed on 11 November; thereby giving the Claimant the opportunity to obtain further evidence. This was reasonable. The Claimant did not provide any further evidence. Adjourning the hearing in light of all the circumstances was not a reasonable adjustment for the Respondent to make.[160]The Tribunal does not consider that Dr Campbell’s letter of 4 December 2019 assists the Claimant here. The letter of 4 December was obviously not available at the time of the decision not to postpone the hearing. When looking at a reasonable adjustments claim, the Tribunal must look at what was reasonable at the time and consider what was in the Respondent’s knowledge at that time. The adjournment decision “has to be assessed in the light of the material which was before the Tribunal on the date on which the hearing was refused” (Kilshaw v OSS [2005] EWHC 1484 (Admin)).
Conclusion
[161]For the reasons given above, the Claimant’s claims of Discrimination arising from disability (Equality Act 2010, s.15) and Failure to make Reasonable Adjustment (Equality Act 2010, ss. 20 and 21) fail. Respondent’s knowledge[162]As the Claimant’s claims in respect of discrimination arising from disability (s.15) and Reasonable Adjustments (ss.20 and 21) fail, the Tribunal has not gone on to consider in detail the Respondent’s knowledge of the Claimant’s disability. The Tribunal merely observes that the Claimant’s mental health was being raised as an issue from the outset of these proceedings, according to DS Thomson, as per paragraph 16 of his witness statement, and that he had the Equality Act at the forefront of his mind, as per paragraph 25 of his statement. With that in mind, it is unclear to the Tribunal why the Respondent disputes knowledge to the extent that it does.[163]The Claimant’s claims having failed on their merits, it is not necessary for the Tribunal to consider the time limit issued arising from Section 123(3) of the Equality Act 2010 (Fuller V London Borough of Redbridge [2013] UKEAT 0084 13 1207).