Mr M Parker v Chief Constable of Hampshire and Isle of Wight Constabulary: 1403767/2022

EMPLOYMENT TRIBUNALS

Case No 1403767/2022

Between

Mr M ParkerClaimant

Chief Constable of Hampshire and Isle of Wight ConstabularyRespondent

Before

Employment Judge Rayner Sitting alone

In person for claimant

Mr B Large (instructed by Counsel) for respondent

Date 4 April 2025

JUDGMENT

[1]The Respondent had knowledge of the Claimants’ disabilities as follows:a. the Respondent knew or could reasonably have been expected to know that the Claimant had a disability of ASD by end of July 2018.

b. the Respondent knew or could reasonably have been expected to know that the Claimant has a disability of attention deficit hyperactivity disorder by July 2020.

c. The Respondent knew or could reasonably have been expected to know that the Claimant was disabled by reason of PTSD in February 2020.

[2]The Respondents claim that it operated the following legitimate aims, are well founded and succeed. The Respondent had the following aims which are legitimate.a. In respect of the allegations of i. Failing to Provide Temporary Promotion to DI in June 2021 [Issue 6.10] ii. From 30 July 2021 to 27 August 2021 failing to inform the Claimant of promotion opportunities whilst on disability related leave [Issue 6.11]

b. The Respondent had the following legitimate aims i. Effective management and supervisions of officers including the Claimant ii. An effective promotion application process for Detective Inspectors iii. The fair and effective management of employees’ sickness absence and support of Employees iv. The provision of effective policing to the communities and organisations of Hampshire and Isle of Wight

c. In respect of the issue of alleged Removal from Meetings [Issue 6.5] and Telling the Claimant to stay within his Chain of Command [Issue 6.6] the Respondent had a legitimate aims of i. Effective management and supervisions of officers including the Claimant ii. The Provision of Effective Policing to the Communities and Organizations of Hampshire and the Isle of Wight

d. In respect of the issue of alleged Interview Pressure [Issue 8.2] the Respondent had a legitimate aim of Effective management and supervisions of officers including the Claimant

[3]The Respondent’s claim that it operated the following legitimate aims, are not well founded and do not succeed. The following aims, relied upon by the Respondent for the purposes of the discrimination claims, are found not to have been operated by the Respondent. a. In respect of the allegations of i. Failing to Provide Temporary Promotion to DI in June 2021 [Issue 6.10] and ii. From 30 July 2021 to 27 August 2021 failing to inform the Claimant of promotion opportunities whilst on disability related leave [Issue 6.11], the aim of The fair and effective management of employees’ sickness absence and support of Employees

[4]The Claimant’s claim that the Respondent operated the following policy criteria or practices, is well founded and succeeds.a. A policy or practice that applicants would be tested using a scenario in a manner intended to created a pressured environment both in terms of time, because candidates are provided with the questions 30-35 before the interview, and because of the requirement to read, assimilate and process that information in a manner which enables them to provide clear responses in an interview to questions which the applicants have not previously had sight of (The Pressure PCP)

b. A policy or practice of asking double questions and/or questions which lacked clarity or were ambiguous in the interview (The Questions PCP)

c. A practice of arranging meetings after 2pm (The Meetings PCP)

d. A policy or practice of not allowing officers to bring psychiatric assistance dogs into the workplace (The Assistance Dogs PCP)

e. A practice or policy of appointing an officer of a rank senior to the complainant in a grievance to investigate an officer’s grievance (The Grievance PCP)

[5]The Claimants allegation that the Respondent discriminated against him by failing to provide temporary promotion to DI in June 2021, is not well founded and is dismissed. The Respondent's response that it was justified in failing to provide temporary promotion to Detective Inspector in June 2021 is well founded. The Respondents actions were a proportionate means of achieving the legitimate aim 6. the Claimants allegation that the Respondent discriminated against him in failing to inform the Claimant of promotion opportunities whilst he was absent on disability related leave from the 30th of July 2021 to the 27 August 2021 is not well founded and is dismissed. The Respondents response that it was justified is well founded. The Respondents’ actions were a proportionate means of achieving the legitimate aims.

REASONS

[1]The Claimant was a serving officer engaged by the Respondent since the 10th May 2004 and at the point that he filed his claim to the employment tribunal he was employed as Detective Sergeant in the digital investigations team.

[2]The Claimant self identified as a gay neurodiverse male.

[3]The Claimant asserts that he is disabled by following impairmentsa. attention deficit hyperactivity disorder ( ADHD)

b. Complex post traumatic stress disorder.

c. autistic spectrum disorder (ASD)

d. Clinical depression

e. General anxiety disorder

[4]The Claimant brings claims of discrimination on grounds of disability, putting his claims as direct and indirect discrimination; discrimination for reason arising from his disability harassment and a failure to make reasonable adjustments.

[5]The Claimant filed his claim to the employment tribunal on the 25 November 2022. He attached with his claim a document entitled summary and explanations. in that document which runs to 17 pages, he sets out the background to his claim; a clarification of his disabilities; a timeline along with equality tribunal time limits, references to legal provisions and then, under various headings, descriptions of the allegations he makes. It also includes issues in respect of a summary of promotion; discrimination and in respect the failure to provide an auxiliary aid and provides information in respect of the use of guidance and assistance dogs.

[6]The Respondent replied to the claim with grounds of resistance dated the 22 March 2023, in which they set out a denial of knowledge of the Claimant’s conditions and denial that the conditions relied upon by the Claimant constituted disability.

[7]The Respondent denied direct disability discrimination contrary to section 13 discrimination arising from disability contrary to section 15; indirect disability discrimination contrary to section 19; failure to make reasonable adjustments contract section 21 and disability harassment contrary to section 26. They also denied that they had breached the public sector equality duty and state that the Claimants claim was time barred because it was submitted out of time having been issued on the 25 November 2022.

[8]In their response the Respondent stated that the Claimant’s grievance, which was raised on the 31 August 2022 under the Respondent’s conflict resolution policy, was ongoing and that they therefore reserved their position pending the outcome of the grievance process. The response therefore did not engage with any of the allegations specifically set out by the Claimant.

[9]In its amended ET3 the Respondent says that it became aware of the Claimant’s depression in November 2017; the Claimants anxiety in December 2017; the Claimants PTSD in February 2020 and the Claimants ADHD in December 2020. The Respondent became aware of the Claimants ASD on 22 June 2023

[10]At paragraph 11 of the amended ET 3 the Respondent says as follows “the Claimant attended various occupational health appointments organised by the Respondent. in June 2018 and October 2019 occupational health confirmed that they believed the Claimants anxiety and depression were likely to constitute disabilities under the Equality Act. However in March, April, May and June 2020 occupational health confirmed that the Claimants PTSD anxiety and depression were unlikely to constitute disabilities under the Equality Act 2010. In January June and July 2022 occupational health confirmed that the Claimants ADHD PTSD anxiety and depression were likely to constitute disabilities under the Equality Act 2010. On 22 June 2023 occupational health confirmed that the Claimant's ASD was likely to constitute a disability under the Equality Act 2010.

[11]The matter was dealt with initially at a case management hearing before employment judge Midgley who set the matter down for a further case management hearing on the 27 September 2023 by video.

[12]The purpose of the second case management hearing was toa. clarify the legal and factual allegations pursued;

b. consider reasonable adjustments for a future hearing and the ground rules for the future hearings.

[13]Directions were given for that preliminary hearing in particular for the production of a short bundle of documents,

[14]A second case management hearing took place before employment judge Midgley on the 28th September 2023. A further case management hearing was listed for the 15 December to decide the final list of issues to agree reasonable adjustments for final hearing to list the final hearing to deal with general case management and to deal with other matters.

[15]Various orders were made for each party to provide further information and the Respondent was given permission to serve an amended response by the 17 November 2023, setting out the Respondents factual arguments in connection with the claim as understood

[16]At the second case management hearing the Respondent accepted that each of the conditions amounted to a disability at the material times but did not admit that they were aware of each disability or their effect, at the material times.

[17]Reasonable adjustments were agreed with the Claimant for the 2nd and future case management hearings and reasonable adjustments have been agreed in respect of this hearing. They are as followsa. a break in the hearing is taken every 45 minutes for 10 or 15 minutes

b. the hearing was conducted as a hybrid hearing so that the Claimant may give evidence from home and be supported by his partner Eugene and his assistance dog

c. the Claimants partner and the Claimant have agreed a nonverbal sign which the Claimant can use to indicate anxiety or stress levels his partner Eugene has a red card and a yellow card which can be held up to indicate to the tribunal that a break will be needed shortly the yellow card or a break is needed immediately red card.

d. the tribunal will start its day at 9:30 with break of 10 to 15 minutes lunch would be taken as close to 1:00 as possible

e. shorter hearing days may be necessary

f. the hearing has been listed for four days with a three day break to include the weekend to avoid the Claimants anxiety stress and fatigue levels rising to levels of incapacity the Respondents council will provide an agenda of topics to be covered in cross examination to the Claimant in advance of the cross examination and will follow that agenda where possible in a chronological order identifying each topic before it is addressed

g. the Respondents council will endeavour to avoid double tag or ambiguous questions at the outset of the hearing the judge will explain the matters on which evidence is required the process to be followed in the hearing and the approach to be taken to questions and closing arguments. The issues to be determined at the stage one final hearing

[18]At the case management hearing on 15 December 2023 a first final hearing for 8 days was listed which was subsequently increased to 9 days. This was listed for a hybrid hearing to determine the following limited number of issues only, on the understanding that the remaining issues would be listed for a second subsequent final hearing:a. the date of the Respondent’s knowledge, whether actual or constructive of each of the disabilities relied upon;

b. whether the Respondent operated the alleged PCPS in relation to the section 15 claim of discrimination for a reason arising from disability; indirect discrimination contrary to section and allegations of a failure to make reasonable adjustments contrary to section 20 and 21 Equality Act 2010.

c. whether the Respondent had a legitimate aim and business need to operate the PCPS relied upon (section 13/20/21) and or for any alleged unfavourable treatment alleged in the section 15 claim

d. Whether the manner in which the Respondent operated the PCP was proportionate to its discriminatory effect ( if the parties and judge agree that that is an issue which can be determined in isolation to the determination of the other claims such as the claim of failure to make reasonable adjustments)

[19]Following that case management hearing and on the 12 January 2024, the Respondent confirmed its position in respect of each of the alleged PCPS and its position in respect of each of the legitimate aims relied upon.

[20]The parties have produced an agreed list of issues setting out the claims of direct discrimination; discrimination arising from a disability contrary to section 15 indirect discrimination on the grounds of disability section 19 and failure to make reasonable adjustments contrary to section 21 and harassment contrary to section 26. This hearing and preliminary issues

[21]At the start of this hearing the Claimant made an application full strike out of the Respondent’s response. in a written application the Claimant set out a number of grounds for the application which included unreasonable conduct and a failure to engage in a timely and cooperative manner a failure provide to provide documentation under defence an allegation that the Respondent had lost documents and delayed statements an allegation that the Respondent had produced a biased chronology, a failure by the Respondent to investigate his grievance properly and an allegation that he had faced pay reduction and health retirement.

[22]The tribunal heard the application and response to it at the outset of the hearing and gave judgement with reasons at the time. the reasons are not set out in any detail therefore in this judgement.

[23]The decision was that there were insufficient grounds to strike out the Respondent’s response but there was a concern that the Respondent had failed to disclose necessary documents until the Thursday before this hearing. those documents were policy documents which the judge found were relevant to the matter and which the Respondent ought to have known were relevant to the issues in the case some months prior to their disclosure if not at the time of initial disclosure and exchange of documents.

[24]The Claimant who has a number of disabilities and who is neurodiverse explained to the tribunal that the late disclosure of documents had caused him particular disadvantage and having heard representations from both parties the Judge accepted the proposal made by the Respondent and accepted by the Claimant and made a preparation order against the Respondent and in favour of the Claimant, who is a litigant in person of £130.67. this was on the basis that the Claimant stated he had been obliged to spend an additional 2 hours and 35 minutes in preparation during the lead up to the hearing. Attendance of Detective Inspector Jones.

[25]At the start of the hearing the Respondent stated that Detective Inspector Jones would not be able to attend at the hearing but had produced a witness statement. he what signed off work with a heart condition which he had recently been hospitalised although he was not in hospital at the time of the hearing. whilst this was frustrating for the Claimant who had hoped to cross examine Detective Inspector Jones the tribunal explained that it could still receive and read the unsworn evidence of Detective Inspector Jones but that less weight would be attached to any points of difference between his evidence and any sworn evidence before employment tribunal. Knowledge of Disability

[26]The parties agree that the Respondent had knowledge with that the Claimant suffered with depression and anxiety and that the impairment amounted to a disability, at all material times.

[27]The Respondent asserts that it had actual or constructive knowledge that the Claimant was disabled by reason of post traumatic stress disorder from February 2020 and the Claimant agrees that this is the appropriate date.

[28]The points of difference between the Claimant and the Respondent are in respect of the Respondent’s knowledge of the disability by reason of attention deficit hyperactivity disorder and autistic spectrum disorder.

[29]The Respondent accepts that the Claimant was disabled by both impairments at all material times but asserts that it did not have knowledge that the Claimant had ADHD until July 2020, whereas the Claimant asserts that they had constructive knowledge from at least the 29 May 2018.

[30]In respect of autistic spectrum disorder, the Respondent states that it had knowledge from April 2023 when it received an occupational health report. The Claimant asserts that the Respondent had actual or constructive knowledge from 29 May 2018.

[31]In both cases the Claimant relies upon a conversation which took place with his manager Detective Inspector Gareth Jones on the 29 May 2018.

[32]The parties agree that the Claimant met with DI Gareth Jones on the 29 May 2018.

[33]DI Jones did not attend to give evidence to the employment tribunal in person, because he was unwell and signed off work. He provided a medical note to the employment tribunal.

[34]The tribunal did have an unsigned witness statement prepared for the purposes of this hearing from DI Jones, of 36 paragraphs.

[35]In his witness statement he sets out his evidence about what he knew about the Claimant’s impairments and when he became aware of the various information.

[36]There is a dispute between the evidence provided in the witness statement of DI Jones and the evidence given by the Claimant who has attended for the tribunal and being cross examined.

[37]Where there is a conflict between the evidence of the two witnesses, I have explained which evidence I accept and why.

[38]The Claimant asserts that in that one-to-one meeting on the 29 May 2018 that DI Jones raised a question of whether the Claimant was autistic or on the spectrum.

[39]In cross examination the Claimant asserted that he was 100% certain that it was DI Jones who first raised the question of the autism spectrum. He said he raised his belief that I was on the Autistic spectrum and mentioned 2 or 3 different traits in relation to the ASD and almost suggested that he would speak to OH about trying to get it diagnosed.

[40]When he raised ASD in this meeting, I had raised in response , that I believed I probably had ADHD, from childhood, and that some initial testing was to be done but cancelled, but believed that it was likely that I had ADHD.

[41]In his statement DI Jones says that the Claimant, who he line managed in 2018, had disclosed to him that he suffered with anxiety and depression. Mr. Jones states I was not aware of any neurodivergent conditions that he suffered from, however I am the father of a neurodivergent person and I noted characteristics that made me consider that the Claimant may suffer with autism spectrum disorder.

[42]He says he specifically noted friction between the Claimant and other team members and was approached by some team members with concerns on occasions. He says he raised this with the Claimant in a one to one meeting on the 29 May 2018. He states that he was concerned about the Claimant’s communication with those that he was leading as a supervisor of a team and was specifically concerned that his communication was not effective as it could have been.

[43]He said if the Claimant did suffer with ASD, then he hoped to find appropriate support to help him and therefore made a referral to occupational health and contacted a force autism ambassador for advice. I accept his evidence that this is what he did, but no document has been produced of the questions or discussion between DI Jones and the force autism ambassador or indeed what advice may have been given to DI Jones in respect of the Claimant at that point.

[44]The note of that meeting which is two sides of A4 was sent to the Claimant on the 10 June 2018.

[45]Under the heading Personal the note records a discussion about how the Claimant was dealing with his anxiety and depression. The Claimant reported some family issues, and it is recorded that the Claimant told DI Jones that all of his siblings were on the spectrum.

[46]DI Jones recorded I think that there is an issue with communication across the range of your interactions that needs to be urgently addressed. You have a lot of skill in your role within CAIT but I have observed that what is missing is a varied communication style that brings people in rather than leading to confrontations and misunderstandings which is what I have observed.

[47]He makes reference to a referral to occupational health which will enable the Respondent to assess whether there are reasonable adjustments that could be made to support the Claimant in his role.

[48]He then says however you are in a key leadership role working in the department that protects the most vulnerable people in society it is therefore your responsibility to ensure that you are fit for duty and that you do not engage in activities outside work that jeopardise your fitness for the role.

[49]He raised the question of communication and states the way you communicate causes people to feel upset and demotivated and that their voices cannot be heard it has been said to me that sometimes you don't seem to understand the point of view of the person that you are talking to.

[50]He says I was really encouraged by what you said to me in this one to one. You acknowledged that communication is a challenge for you but you want to work on this area although you have not been diagnosed with a spectrum condition you would like to find out more about whether this is something that is relevant to you.

[51]DI Jones referred the Claimant to occupational health following this meeting.

[52]The occupational health report notes the medical aspect stating as you are aware Matthew suffers from chronic depression and takes medication to help manage his symptoms. It states Matthew feels that he may be on the autistic spectrum although this has never been officially investigated or diagnosed and I have given him some advice about this.

[53]Under recommendations it states Matthew reports that he has no difficulties carrying out his role and is comfortable with the difficult nature of it. Despite this I understand that he has received some feedback from colleagues about his manner and suspects that he may be on the autistic spectrum. I recommend that he contacts the disability support network and the equality and inclusion team within Hampshire Constabulary to investigate the possibility of being assessed and what support can be offered to him. I have also signposted him to external agencies and advised him to speak to his GP. Matthew suffers from chronic depression which means that he is likely to have a slightly higher than average level of sickness absence.

[54]A subsequent Occupational health report did suggest an adjustment to the sickness absence triggers at that point.

[55]I find as fact that during the course of the meeting on the 29 May 2018, it was DI Jones and not Mr. Parker, the Claimant, who initially raised the question of whether or not the Claimant might have autistic spectrum disorder. I find that DI Jones had already noted that the Claimant struggled with communication and had noted that his communication style was having an adverse impact in the workplace. I find that he had already raised the question as to whether or not the traits displayed by the Claimant might be because the Claimant is on the autistic spectrum or had a spectrum disorder.

[56]I accept the Respondent's admission that DI Jones was not a medical individual, but have placed some weight on the fact that in his own evidence he refers to having a child who is on the spectrum.

[57]The Claimant's difficulty with communication clearly gave him sufficient pause for thought that he considered it appropriate to raise it within a meeting and discuss the matter with the Claimant and that he considered it appropriate to speak to the force autism ambassador.

[58]It is also evident that the matter was again flagged up in the occupational health report provided to the Claimants management.

[59]Therefore in the summer of 2018, DI Jones had raised the question with the Claimant about whether he might be on the autistic spectrum and had identified reasons why he thought this might be the case. The Claimant had confirmed that he thought he may well be only spectrum but that the matter had never been formally diagnosed.

[60]The Claimant was subsequently formally diagnosed with both ADHD and autistic spectrum disorder. It is right that the formal diagnosis occurred much later in the chronology, but at this point in time DI Jones knew that there were traits or indicators of an impairment which placed the Claimant at a disadvantage within the workplace. He was identifying communication skills as a significant issue and I find that this was significant enough for both the Claimant’s colleagues to raise it with DI Jones, and for DI Jones to raise it with the Claimant and for the Claimant to recognise that there was a potential issue that needed to be addressed.

[61]I find that this was a significant disadvantage in that it was more than trivial. I find that DI Jones was aware of it, and had considered a possible reasons for the difficulty.

[62]Since DI Jones had an autistic child, he would likely know that autism is a condition which is life long and that therefore could be expected to be aware that it would be a long-term condition.

[63]I accept that the formal diagnosis came at a later stage in the chronology and I accept that DI Jones did not know for certain, any more than the Claimant knew for certain, that the Claimant was on the autistic spectrum.

[64]I have therefore considered whether or not DI Jones had constructive knowledge.

[65]As the EAT explained in A Ltd v Z

[2020] ICR 199

:38. A Respondent will avoid the liability that would have otherwise arise under section 15 EqA if it can show that it did not know, and could not reasonably have been expected to know, of the complainant's disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the ET's task; it must then go on to consider whether the Respondent had what (for shorthand) is commonly called “constructive knowledge”; that is, whether it could - applying a test of reasonableness - have been expected to know, not necessarily the Claimant's actual diagnosis, but of the facts that would demonstrate that she had a disability - that she was suffering a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

39. As to what a Respondent could reasonably have been expected to know, that is a question for the ET to determine. The burden of proof is on the Respondent but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case.”

[66]In this case I find that the Respondent was on notice that the Claimant might be disabled by reason of ASD and I conclude that there was a duty to ask further questions.

[67]I find as set out above, that questions were asked of the autism ambassador and of occupational health.

[68]I find that following those questions, no further information was sort by DI Jones either of the Claimant or of anyone else. There was no encouragement of the Claimant to pursue the matter and no question from his manager as to whether or not there was any outcome, decision or resolution. It appears that the matter was simply dropped.

[69]I remind myself that the question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the tribunal, according to the EAT in Jennings v Barts and The London NHS Trust

UKEAT/0056/12

, [2013] EqLR 326,

[2013] All ER (D) 184

(Mar). The court in that case further held that 'if a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name'. This would suggest that an employer ought to concentrate on the impact of the impairment, not on any particular diagnosis..

[70]The position was summarised by Rimer LJ in Gallop v Newport City Council

[2013] EWCA Civ 1583

[2014] IRLR 211

. At para [36] of his judgment (p 217), he says: '[Counsel] were agreed as to the law, namely that(i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and

(ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in s.1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Schedule 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a “disabled person” as defined in s.1(2). I agree with counsel that this is the correct legal position.'

[71]This would suggest that an employer ought to concentrate on the impact of the impairment, not on any particular diagnosis. Langstaff P in Donelien v Liberata UK Ltd

UKEAT/0297/14

(16 December 2014, unreported; affirmed by the Court of Appeal

[2018] EWCA Civ 129

[2018] IRLR 535

) warned that when considering whether a Respondent to a claim 'could reasonably be expected to know' of a disability, it is best practice to use the statutory words rather than a shorthand such as 'constructive knowledge' as this might imply an erroneous test. The burden – given the way the statute is expressed – is on the employer to show it was unreasonable to have the required knowledge.

[72]That case was decided under the predecessor legislation, the disability Discrimination Act the relevant provision under the Equality Act is set out in section 15 (2) Equality Act 2010, in respect of discrimination arising from disability, as follows: subsection 1 does not apply if a shows that they did not know and could not reasonably have been expected to know that B had the disability.

[73]I conclude that DI Gareth Jones had sufficient information about the traits that may amount to an impairment and the impact of those traits on the Claimants day-to-day abilities to put him on notice that the Claimant had and autistic spectrum disorder. I conclude that his notice of the Claimants’ difficulties with communication was a recognition of a substantial disadvantage that was probably the result of something in the nature of an impairment, and I conclude that DI Garth Jones was aware that this was an issue of long standing. further I conclude that the identification of the label of ASD is evidenced that D Jones recognised a potential impairment and the need therefore for some further investigation. However, having identified the need to make further investigations and having contacted the autism ambassador, no further steps were taken by anybody to identify whether or not the impairment and it's the impact noted were the result of ASD ADHD or any other condition.

[74]In those circumstances I conclude that the Respondent has not done everything it could have done to identify whether or not the Claimant had a disability despite being in possession of the relevant facts and I conclude therefore that the Respondent could reasonably have been expected to know that the Claimant had a disability of ASD by end of July 2018. This is the date by which the Respondent could have been expected to have spoken with the autism ambassador; to have received the occupational health report and to have had some further discussion with the Claimant about a potential impairment and any further steps necessary to confirm a diagnosis.

[75]In respect of ADHD I find as follows.

[76]I find that there was no reference to attention deficit hyperactivity disorder in any of the discussions that the Claimant had either with DI Garth Jones or with occupational Health advisors in 2018.

[77]The Claimant says that he believed he would have informed DI Gareth Jones that he had ADHD during a one to one session on the 29 May 2018, but his evidence to the tribunal under oath was that he believed he would have made reference to it during the discussion about ASD.

[78]I find that had ADHD been mentioned that it would have been referred to either in the note made by DI Jones or in the referral to occupational health or in the comments made about the Claimant’s understanding of his own condition in the occupational health report. I make this finding because there was no hesitancy in referring to ASD by either DI Garth Jones or by occupational health or by the Claimant. I accept that the Claimant may well have thought about ADHD but I have find no evidence that it was in fact referred to .

[79]I have also taken notice of the evidence provided by the Claimant's own witness Emma Kell. She did not attend to give live evidence but provided a statement to the tribunal. In that statement she says that she had worked with Mr. Parker for nine years in the CAIT and states that they were friends outside work. She recalled Mr. Parker telling her that DI Jones had suggested that merch would have a test for autism. She was aware that there was subsequently a test for autism and that he was diagnosed. She also referred to a subsequent diagnosis for ADHD . The Respondent is correct that she does not refer to any conversation with Mr. Parker in which he told her either that he believed that he may be ADHD or that his conversation with DI Jones was one in which ADHD was mentioned.

[80]I therefore conclude that neither the Claimant nor his manager referred to that impairment of ADHD at all after the meeting on the 29 may 2018.

[81]I find that the first time ADHD was referred to was in January 2020

[82]I accept the Claimant’s evidence that on the 31 January 2020 he requested information from the force dyslexia assessors to confirm whether they were able to test for ADHD, following previous advice from occupational health. He says he discussed this ADHD with occupational health on the 18th of June 2020.

[83]I find that the Respondent knew or could reasonably have been expected to know that the Claimant has attention deficit hyperactivity disorder by July 2020.

[84]The Respondent says it became aware of the Claimant suffering with PTSD in February 2020 and the Claimant accepts that this is the correct date for knowledge in respect of that disability. Justification of alleged discrimination

[85]The second part of this hearing has focused on the first part of the Respondent’s justification defence in respect of alleged discrimination contrary to section 15; sections 20 and 21 and in respect of indirect discrimination.

[86]I have considered whether or not the Respondent has demonstrated that it had the aims which it relies upon and whether or not those aims are legitimate.

[87]Most of the aims relied upon by the Respondent have now been admitted by the Claimant. In respect of the remaining aims I have set out the allegation of discrimination made by the Claimant and the aim relied upon and then set out relevant findings of fact and my conclusions. The allegations about promotion and temporary promotion

[88]The Claimant alleges that the Respondent failed to provide temporary promotion for the Claimant to Detective Inspector in June 2021 (issue 6.10) and secondly, that the Respondent failed to inform the Claimant of promotion opportunities whilst he was on disability related leave from the 30 July 2021 until the 27 August 2021. (issue 6.11.)

[89]In respect of both allegations, the Respondent relies upon the following legitimate aimsa. The effective management and supervision of officers including the Claimant

b. An effective promotion application process for detective inspectors

c. The fair and effective management of employees sickness absence and support of employees

d. The provision of effective policing to the communities and organisations of Hampshire and the Isle of Wight.

[90]The factual background to the allegations is as follows.

[91]The Claimant was originally working in the child abuse investigations team. The Respondent says it was aware that the Claimant was suffering with PTSD in February 2020 and was aware of the Claimants ADHD in July 2020.

[92]In July 2020 the Claimant was posted from CAIT to the scientific services division as recuperative duties. I find that this was a specific adjustment made for the Claimant because of his health conditions and that he was placed in a temporary role with fixed hours but no live investigations.

[93]By July 2020 therefore the Respondent was aware of all the Claimant’s disabilities. The Respondent was aware of the impact that the Claimants disabilities had had upon him both because of his sickness absence but also because of their own observations of him.

[94]The Claimant worked within SSD under the direct management of DI Aslam. He asserts that he gained a level of expertise from doing the work and that he shared many of the tasks with DI Aslam. He asserts that he was working at a level higher than his grade as a Detective Sergeant and he believed that he was capable of acting up into the senior position when DI Aslam left the police force.

[95]Mr. Parker questioned the Respondent witnesses about the steps taken by the Respondent to support and facilitate the promotion of neuro diverse officers.

[96]The Respondent witnesses accepted that in 2021 there was no specific monitoring of the progression of neurodiverse officers as a group; that there had been some research done about the progression of neuro diverse officers within the police force which identified a disparity in the progression of neurodiverse officers compared to those without neurodiversity disabilities; that monitoring of progression and promotion of officers who declared a disability, suggested that those with disabilities were less likely to be promoted than those without and that the statistical difference was significant.

[97]The Respondent has a promotion and recruitment process and I accept that the police force is by nature a hierarchical organisation.

[98]In brief the Respondent’s process for internal promotion of officers is as follows.

[99]Officers who wish to be promoted to the next rank are assessed through an internal process which includes submitting a written application for promotion, being put forward to an interview and assessment panel and passing the interview and assessment panel.

[100]The successful applicants are then eligible to apply for any opening at the relevant rank within a certain time frame.

[101]In the case of the rank of Detective Inspector, which was the rank which the Claimant hoped to be appointed to, Mr Doughty suggested that there would be around 100 applicants in any promotion process and around 30 three of those would be successful and allocated to various roles as they became vacant over the course of the year

[102]The Respondent could also, in its discretion decide that a vacant post was one where an officer could act up into the post on a temporary promotion. I understood that a temporary promotion role could be available to an individual who had not yet passed the promotion board for Detective Inspector, for example, but who hoped to do so in the future. I also understood from the evidence that a temporary promotion might be appropriate where there was a particular need for a skill set within a particular time frame for example.

[103]However, the evidence from Detective Chief Superintendent Rowlandson, was that the practise of the Respondent was to advertise vacant roles to officers who held the substantive rank first, before giving any consideration to temporary promotions. This was to ensure that those who had passed the promotion board would have the opportunity for taking up the Detective Inspector role within the defined period of time.

[104]He told the tribunal that he was aware of the Claimant’s disabilities when the Claimant was allocated to his team.

[105]Mr Rowlandson told the tribunal and I accept that when DI Aslam resigned from the Constabulary, that he took the opportunity to review the permanent management structure of the department. He moved Samantha Howard to lead on physical forensics; placed DCI Colin White as head of digital forensics; converted the police staff digital forensics unit manager post to Detective Inspector post and changed the programme lead role from an active acting Detective Chief Inspector to a Detective Inspector rank, moving DI Rose to report directly to DCI Colin white .

[106]He says that the new structure was designed to improve the connectivity between digital forensics and the rest of Constabulary and to provide greater long term focus and ownership on the improvement work. He told the tribunal and I accept that at the time there was a significant backlog in the digital forensics and scientific services department. Among other things, the department is responsible for analysing data from mobile phones and fingerprint evidence that is often crucial to the progress of criminal trials. The significant backlog in the department was therefore having an impact on how long it was taking matters to reach the courts and Mr Rowlandson asserted that the new structure was intended in part to address those issues.

[107]Having designed a structure which had two Detective Inspector roles, both roles were then opened up to those already holding the substantive rank. Mr. Parker, who was a Detective Sergeant was therefore not eligible to apply for either post.

[108]He told the tribunal that the work that he had been doing and the skill set that he had developed meant that he would have been able to act up into one of the Detective Inspector roles and that he ought to have been given the opportunity to do so.

[109]The Respondent asserts that it had a legitimate aim in proceeding in the way that it did, of effective management and supervision of officers, including the Claimant; of operating an effective promotion application process for detective inspectors; of the fair and effective management of employees sickness absence and support of employees and the provision of effective policing communities to the communities and organisations of Hampshire and the Isle of white.

[110]I find that the Respondent did have a legitimate aim of operating an effective promotion application process for detective inspectors and that it had a legitimate aim of the effective management and supervision of officers including the Claimant. I also find that in this respect it had a legitimate aim which was the provision of effective policing to the communities and organisations of Hampshire and the Isle of Wight.

[111]I accept that the Respondent operated a policy for the management of employees sickness absence and support of employees, but I find that the only relevance of that policy to this part, of the claim, was as an explanation for the Claimants presence within the SSD at the time of that reorganisation. I find that other than this, it was of no relevance to the failure to provide the Claimant with a temporary promotion to Detective Inspector in June 2021. No one has suggested to me that the reorganisation and redesign of the management was anything to do with anyone's sickness absence, and I find it was not.

[112]The second part of the Claimants allegation is that once the two DI roles were identified, that there was a failure to inform him of promotion opportunities whilst he was on disability related leave.

[113]The Claimant was absent from work during the relevant period of time because he had suffered a DIY accident outside work. He accepted in cross examination with that although the accident did have a long term impact on his hand, that it was not a disability which he relies upon for the purposes of these proceedings.

[114]It is right to say as the Respondent does, that the Claimant was not therefore absent on leave in respect of disability related absence but was absent in relation to ordinary sickness.

[115]The Respondent did not specifically alert the Claimant, on an individual basis, to the vacancies. I find that the usual practise of the Respondent is to advertise such vacancies on the force Internet by way of an invitation of expressions of interest. The advert will usually set out the rank of those who are eligible to apply.

[116]In this case there were two adverts put out within a relatively short period of time. It is not clear why it was necessary for there to be two adverts, and the tribunal has only been referred to the second of them.

[117]The Claimant confirmed that although he was on sick leave, he did have access to his computer and that he could therefore have seen the application form.

[118]I have not been referred to any practise or provision in any of the Respondents procedures which suggests that the Respondent would or ought to alert those absent on leave about vacancies, although I accept the Claimant’s point that the code of practise on employment in respect of discrimination suggests that it is good practise for an employer to ensure that it has mechanisms in place for those who are absent for reasons of disability or for reasons of maternity for example.

[119]Whether the Respondent ought to have done this or not may well be a matter to be considered in the context of proportionality, but it does not assist in assessing whether or not the Respondent had a legitimate aim.

[120]I conclude that in following the process for recruitment to the two new Detective Inspector posts advertised between the end of July and the 27 August 2021, the Respondent pursued a legitimate aim of an effective promotion application process for detective inspectors, the provision of effective policing to the communities and organisations of Hampshire and Isle of Wight, the effective management and supervision of officers including the Claimant and the fair and effective management of employees sickness absence and support of employees. Proportionate means of achieving a legitimate aim

[121]In respect of these two allegations only, the parties agree that this tribunal can determine whether or not the steps taken were a proportionate means of achieving the legitimate aims.

[122]The allegations made by the Claimant in respect of the promotions are allegations of discrimination for a reason arising from disability.

[123]The Claimant has set out 10 things which he says arise in consequence of his disability as follows:a. Emotional dysfunction, emotional responses which are disproportionate to the objective issue and an inability to control such responses and inability to pick up on the emotional responses of third parties talking over people interrupting people seeming disengaged from people]

b. rejection sensitivity dysphoria

c. executive functioning issues hyperactivity hyper focus and attention deficit fatigue excessive attention to detail reduced working memory

d. struggling to praise himself and express himself succinctly in writing causing anxiety in respect of anxiety/ PTSD a. increased anxiety he suffers panic and anxiety attacks when stressed b. he needs to take medication to manage the effect of his disability c. his ability to function is reduced in the afternoon as a consequence of his medication reducing ineffectiveness d. when his symptoms are acute he requires sick leave to recuperate and manage those symptoms

e. to assist in mitigating and managing the effects of his disability he is assisted by the presence of his assistants dog koda.

[124]I remind my self that when considering proportionality, I am concerned with the employer’s explanations of the reason why it acted as it did.

[125]The key legal principles in this respect can be summarised as follows:

[126]If the Claimant is able to demonstrate the essential elements of the test within s. 15 (1)(a)/s. 19 (1) and (2)(a)-(c) , the Respondent has a defence if it can show that the treatment was “a proportionate means of achieving a legitimate aim”. (s. 15 (1)(b)/s. 19 (2)(d)). the test is an objective one for the tribunal to determine, not a band of reasonable responses test.

[127]Proportionality in this context meant ‘reasonably necessary and appropriate’ and the issue required me to objectively balance the measure that was taken against the needs of a Respondent, based upon an analysis of its working practices and wider business considerations (per Pill LJ in Hensman-v-MoD

UKEAT/0067/14/DM

at paragraphs 42-3). Just because a different, less discriminatory measure might have been adopted which may have achieved the same aim, did not necessarily render it impossible to justify the step that was taken, but it was factor to have been considered (Homer-vWest Yorkshire Police

[2012] IRLR 601

at paragraph 25 and Kapenova-v-Department of Health

[2014] ICR 884

, EAT).

[128]If a Respondent relied upon the rationale for a policy or practice, it had to justify the manner in which it was applied to a Claimant in order to meet the defence in the section (Buchanan-vCommissioner of Police for the Metropolis

UKEAT/0112/16

[129]It was important to remember that justification had to be considered against the PCP’s impact upon the business generally, not just the individual employee (City of Oxford Bus Services Ltd-v-Harvey

UKEAT/0171/18/JOJ

[130]Tribunals must engage in ‘critical scrutiny’ by weighing an employer’s justification against the discriminatory impact, considering whether the means correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question, and are necessary to that end. In Gray v University of Portsmouth EAT 0242/20 Mrs Justice Eady made it clear that, in the context of a S.15 claim, a tribunal will be expected to provide sufficient reasoning in its judgment to demonstrate that it caried out a critical evaluation on the question of objective justification. In so holding, the EAT adopted the same approach as applies generally to justification in indirect discrimination claims under the EqA. In particular, Eady J cited the Court of Appeal’s ruling in Hardy & Hansons plc v Lax

2005 ICR 1565

, CA, to the effect that a critical evaluation of the evidence is required, entailing a weighing of the needs of the employer against the discriminatory impact on the employee. The tribunal must carry out its own assessment on this matter, as opposed to simply asking what might fall within the band of reasonable responses of the reasonable employer (the test for unfair dismissal under S.98(4) ERA). Crucially, according to the Court of Appeal, the tribunal must demonstrate the critical evaluation in its reasoning in order to make it clear how it has undertaken its assessment.

[131]The Equality and Human Rights Commission’s Code of Practice on Employment (2011) (‘the EHRC Employment Code’) sets out guidance on objective justification that largely reflects existing case law in this area. In short, the aim pursued should be legal, should not be discriminatory in itself, and should represent a real, objective consideration. Although business needs and economic efficiency may be legitimate aims, the Code states that an employer simply trying to reduce costs cannot expect to satisfy the test (see para 4.29). As to proportionality, the Code notes that the measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see para 4.31).

[132]Whilst the question of proportionality can be determined, the question of whether or not the action was proportionate will of course depend upon the reason for the action and whether or not as a matter of fact it was because of any of the things which the Claimant says arose from his disability.

[133]I find that Mr Rowlandson decided to restructure the management of the SSD because he considered it was necessary given the demands on the business. Whilst there may have been other ways of covering the work, he was entitled to make those decisions and did so in pursuance of the legitimate aims relied upon by the Respondent.

[134]In particular he had in mind the need to deliver an effective policing service to the people of Hampshire in the Isle of Wight.

[135]The Claimant had not passed a promotion board and therefore was not a ranking Detective Inspector who was awaiting appointment to a vacant post. The decision to recruit from those who were detective inspectors into the two vacant posts, was in line with the Respondent’s usual recruitment process. I accept the Respondent’s evidence that the process was to request expressions of interest aimed at those wanting a sideways move, then to look at possible new promotions from those who had already attained the rank, and then to offer opportunities for acting up.

[136]I accept the Respondent’s evidence that there were opportunities in some cases to fast track BME or female candidates for certain applications, but that was not in operation during this exercise and would not have impacted upon the Claimant in any event.

[137]I find that it was possible in any recruitment exercise and at the discretion of the more senior officer, for a role to be covered by way of an acting up opportunity, but I find that Mr Rowlandson did not consider acting up in this case because the two DI roles were considered by him to be senior roles which were close or on the cusp of a DCI role. He considered that they would be particularly attractive to any Detective Inspector who was hoping to be promoted to DCI and was confident that there would be sufficient interest from the existing pool of officers.

[138]I also accept that there was no particular advantage in opening up the role as an acting up role, when there was a pool of those who had been appointed as detective inspectors but had not yet being appointed to a vacancy, and when there were officers who were likely to express an interest in a sideways move.

[139]Mr Rowlandson accepted that the Claimant had significant skills and expertise and experience as a result of the work he had done as part of the digital hub. He did not accept that the Claimant had a skill set that was necessarily appropriate for either of the two vacant roles in any event. However, I find that these our considerations made after the invent because I do not find that there was ever any consideration of offering either of the Detective Inspector roles on an acting up basis.

[140]I find that the Respondent made a decision to restructure the SSD where the Claimant worked, for the reasons identified by Mr Rowlandson as set out above, and that they were in line with the established practice and the stated policies.

[141]The Claimant asserts that the failure to offer him acting up opportunity and the failure to inform him of the vacancies when they became available, were both disproportionate.

[142]He relies upon statistical evidence and evidence from research, which the Respondent accepts pointed towards an under representation of disabled officers in successful promotion and under representation in particular of neuro diverse officers.

[143]He submits that some form of positive action taken in recognition of the Respondents duties under the public sector equality duty, such as offering him as a neurodiverse officer the opportunity of acting up on a temporary basis into a Detective Inspector role, should have been considered and actioned. He asserts that his skill set and his knowledge of the area of work made him an ideal and obvious candidate.

[144]I find that the Respondent could have taken such a step had it wished to do so. A decision on temporary acting up would have required a competitive process but I accept that the Claimant must have been in a strong position in any such process.

[145]I accept on the face of it that neurodiverse officers were underrepresented in successful promotions, although I make no finding about the figures, because I do not have sufficient evidence before me.

[146]I accept that positive action can be an appropriate way for any organisation to address under representation of particular groups.

[147]I also accept that if the promotion process being followed results in under representation of neuro diverse officers, that changes to the recruitment process may need to be considered.

[148]I find that the Respondent did look at making changes to its recruitment process, by reviewing and amending the types of questions asked at interview and by ensuring that reasonable adjustments were available to neuro diverse applicants.

[149]I conclude that at the point that Mr Aslam resigned, there was an organisational need for senior experienced managers to push forward delivery of a centrally important service. The Claimant was not at the grade required at that stage and there were officers ready, available and interested in taking up the two roles and it was proportionate therefore for the organisation to follow its usual recruitment policy rather than making an exception on this occasion.

[150]The second question is whether or not by failing to inform the Claimant of the two vacancies whilst he was absent on sick leave the Respondent acted in a disproportionate manner.

[151]I find that the Claimant was not absent for reason related to disability in any event.

[152]However whilst it would, I think be best practise to ensure that officers absent on disability related leave were informed of opportunities which they were eligible to apply for, Mr. Parker was not eligible to apply for either role because he was not at that point a Detective Inspector but a Detective Sergeant.

[153]The Respondent suggests that they did not inform him because he was on sick leave, and they did not wish to disturb his sick leave but I find there was never any consideration of informing him and no particular reason why they would have informed him of the vacancies. His role was not affected although his line management would be affected, but he would not in any event be eligible to apply for either post.

[154]In those circumstances I find that not informing the Claimant of the vacancies was a proportionate means of achieving the legitimate aim of an effective promotion application process for a Detective Inspector and the provision of effective policing to the communities and organisation of Hampshire in the Isle of Wight.

[155]I therefore dismiss the Claimant’s claims of discrimination under section 15 of the Equality Act 2010 in respect of a failure to provide opportunity for temporary promotion to the role of digital inspector in June 2021 and failing to inform the Claimant of promotion opportunities whilst on disability related leave. Removal from meetings and telling the Claimant to stay within his chain of command

[156]The Claimant makes two allegations about his treatment by the Respondent, first asserting that he was removed from certain meetings, and second that he was told to stay within his chain of command in respect of certain communications.

[157]From the evidence I have heard and from the evidence I have read in the witness statements there seems to be some common ground that there were meetings which the Claimant was not invited to attend, but which he had attended previously. Further, there is some evidence that the Claimant was given instructions about is the correct chain of command in respect of some communications which he sent out.

[158]However, the findings of fact about how he was treated and findings of fact in respect of the reason for any treatment he is found to have been subjected to, will be a matter for determination at final hearing. If any reason for any treatment found, was anything to do with his disability, or something which arose from his disability then the Respondent will need to justify that the steps taken were a proportionate means of achieving a legitimate. That will also be a matter for the next hearing.

[159]The Respondent says that the decisions about who should attend meetings and why, and any instructions or directions or advice given to the Claimant about his communications with others, pursued a legitimate aim of the effective management and supervision of officers including the Claimant, as well as the previously stated aim of providing effective policing. The Claimant takes issues with the first aim denying that there was such an aim being pursued.

[160]I find that the Respondent did as a matter of fact have an aim of effectively managing and supervising officers including the Claimant. I have not heard full evidence about why the Claimant was or was not invited to meetings, or why particular instructions or advice was given to him and make no findings of fact in that respect. If it were found that the reason was a discriminatory one, then it may be that a conclusion could be drawn that the Respondent was not pursuing the legitimate aim relied upon.

[161]However for the purposes of this hearing, I conclude that the Respondent did have a legitimate aim of the effective management and supervision of officers including the Claimant. Questions about whether it was the reason all the Claimant’s treatment and questions in respect of any discrimination will be determined at the next hearing.

[162]In addition, I find that the Respondent did have the legitimate aim of The Provision of Effective Policing to the Communities and Organizations of Hampshire and the Isle of Wight

[163]Interview pressure

[164]The Claimant asserts that the Respondent had a PCP of creating pressure on applicants during the course of interviews. This is allegation 8.2. The Respondent denies that it operated a PCP and this is dealt with below, but says that it's interview process pursued a legitimate aim of the effective management and supervision of officers including the Claimant as well as the effective promotion application process for detective inspectors and the provision of effective policing to the communities and organisations of Hampshire and the Isle of Wight.

[165]The Claimant accepts the latter two aims and I find that they were legitimate aims for the Respondent.

[166]Whilst I accept that the Respondent had a legitimate aim of effectively managing and supervising officers including the Claimant, it is not understood how that had any relevance whatsoever to the way in which a promotion board or interview process was operated.

[167]The Respondent suggests that whether the PCP did operate and whether proportionate, that the interviews concerned activities which may lead to pressure and therefore the process followed was a necessary part of the effective management and supervision of officers.

[168]This does not make sense. If the Respondent considered that it was appropriate to create pressurised scenarios within an interview process, it can fairly argue that it is pursuing a process of fairly selecting officers and of ensuring adequate policing for the area it serves. This is a different aim to that of managing and supervising officers on a day-to-day basis. I do not accept that the the recruitment process and the need to ensure proper policing can be conflated with the management of officers on a day-to-day basis.

[169]I therefore dismiss the Respondents claim insofar as it relies upon effective management and supervision of officers including the Claimant as a legitimate aim pursued in respect of the allegations about interview pressure only. Did the Respondent operate the disputed PCPS

[170]I have borne in mind the following relevant legal principles.

[171]There is no definition of provision criterion or practise in the legislation, and it is a matter for the judgement of the individual tribunal to see whether the conduct fits this description. The concept of what can amount to a PCP under the Equality Act 2010 is wider than the formulation of a requirement or condition found under the prior legislation

[172]The words provision, criterion or practise must not be given a narrow meaning. The words are alternatives and not cumulative and the PCP does not need to be an absolute bar. Any provision, criterion or practise can allow for exceptions to be made and the word provision does not carry any inference of being universally applicable. see for example In British Airways plc v Starmer

[2005] IRLR 862

, EAT.

[173]The concept of a PCP is not to be approached in too restrictive a manner; as HHJ Eady QC stated in Carrera v United First Partners Research

UKEAT/0266/15

(7 April 2016, unreported), 'the protective nature of the legislation meant a liberal, rather than an overly technical approach should be adopted'.

[174]In Ishola v Transport for London

[2020] EWCA Civ 112

[2020] IRLR 368

[2020] ICR 1204

the Court of Appeal emphasised that the words 'provision, criterion or practice' are not terms of art, but are ordinary English words and that they are broad and overlapping, and not to be narrowly construed or unjustifiably limited in their application

[175]A PCP has been interpreted to cover both formal and informal practices of employers, and it certainly includes rules and policies found in collective agreements, works rules and the like, as well as terms of employment specifically spelled out in job advertisements and offers of employment. Further, it does not have to be express or conscious. The Alleged PCPs

[176]The first PCP which the Respondent denies is one that applicants would be tested using a scenario in a manner intended to create a pressurised environment both in terms of time, because candidates are provided with questions 30 to 35 minutes before the interview and because of the requirement to read, assimilate and process that information in a manner which enables them to provide clear responses in an interview to questions which the applicants have not previously had sight of.

[177]I heard evidence from Mrs McCarthy who is employed as an HR business partner by the Respondent about the recruitment process. She denied that there was any intention to create a pressurised environment.

[178]She explains there was a need to ensure that the stage 3 selection process for promotion to Inspector was robust and provided all candidates with an opportunity to demonstrate their competencies. She says there is a need to allow assessors to differentiate across candidates in terms of performance and to choose candidates who have the potential to lead and perform effectively against relevant competencies and values.

[179]She asserts that the approach of the Respondents followed the national policing promotion framework. This is a four step promotion process, setting out the requirements for police officers seeking promotion to the rank of Sergeant or Inspector.

[180]Step three of that process is the Respondent’s own local selection process. She referred to guidance issued in 2019 by the College of Policing which lays out mandatory steps for the process. All forces are required to use the national policing promotion framework police to promote officers to the ranks of Sergeant and Inspector, but the Respondent has a discretion to decide on the structure and techniques used at step three of the NPPF process and vacancy matching. This means that the Respondent can choose their selection method and decide whether to use a presentation exercise and a structured and semi structured interview for example.

[181]The Respondent uses a competency and values framework for all promotions. This defines relevant behaviours; competences and values.

[182]She accepts that the Respondent tested candidates using a scenario and competency-based interview. She says the reason for using a scenario briefing as well as an interview, was because not all candidates would excel in an interview and that the scenario gave a different opportunity to demonstrate skills and expertise.

[183]Her evidence, which I accept is that the Respondent would choose questions for the interviews from an existing competency and Values Framework Bank of questions, which is written by the College of Policing. She said the questions would then be adapted for local context in conjunction with the chief officer lead for the process.

[184]She also stated that in the 2022-2023 promotion process, advice and feedback on proposed questions was sought from the Respondent’s neurodiversity specialist advisor to ensure accessibility and appropriateness. The advice was informal.

[185]I also heard evidence from Thomas Doughty, the strategic resourcing and development manager for Hampshire and Isle of Wight Constabulary. He also denied that there was any intention to create a pressurised environment.

[186]He also referred to the national police promotion framework and the four steps set out within it. Step one requires officers to be deemed competent in their current rank; Step 2 requires candidates to have passed the relevant legal exam for the rank; Step 3 requires local forces to run their own selection process to provide a selection filter for all officers with an exam pass and to match the number of officers continuing to Step 4. Step 4 requires a period of 12 months at temporary promotion rank in the intended role and the completion of a level 5 qualifications work based assessment over that duration.

[187]In relation to the promotion application for Detective Inspectors in 2021 and 2021/ 22, he agrees there was a policy that a written application with the word limit was required as a first stage. He suggests that the Respondent does not actually count the number of words used and that custom and practise was to allow officers to go up to over 20% of the word count.

[188]He also agrees that a scenario-based process was used by the Respondent and that there were time limits in terms of how long before the interview the detail was provided to the candidate. He does not, however, agree that this caused any form of pressurised environment and asserts that there was certainly no deliberate attempt to create duress or pressure for the candidates.

[189]Mr Doughty stated that there had been an equality impact assessment carried out at the time that the process was redesigned and that the scenario-based assessment was introduced specifically to try to make the process more accessible and less stressful. He suggested that the dual approach opened up accessibility and he made particular mention of those who are neurodiverse.

[190]He accepts that the standard approach was to provide an assessment scenario and questions 30 to 35 minutes in advance of interview for all applicants.

[191]He also referred to an expectation set out in policy, practise and training, that the chair of any promotion process selection panel is responsible for ensuring a relaxed and supportive environment, to allow officers to present their best evidence.

[192]In respect of the questions asked, the Respondent asserts that the intention is to ensure that the questions are accessible to everybody. He told the tribunal that in 2019 the Respondent worked with an occupational psychologist engaged by the College of policing to create a bank of questions for use in force promotion and recruitment processes. He says that the questions were designed to be accessible and appropriate and to have a mix of types and structures. He says that the Respondent had a practise of asking candidates appropriate and relevant questions in line with NPPF guidance.

[193]During the course of this hearing the Respondent was asked to produce a copy of the 2019 Hampshire Constabulary promotion framework which is the framework that was in use at the relevant time.

[194]The Claimant made reference to this framework within his claim to the employment tribunal, and in particular quoted from Section 4, Promotion to Rank- Constable to Inspector which states under key considerations, as follows: The process enables candidates to bring all relevant experience forward for assessment. The process enables all candidates to show all relevant qualifications. It is accepted that there may be development required around technical competence across the entire rank. The process is designed to get the best from candidates. We will consciously build in the assessment of performance under pressure where appropriate. (My emphasis)

[195]The Claimant says that the practise has the effect of creating a pressured environment for neurodiverse individuals. He explains that it is harder for him to process information in a short period of time and that the 30 to 35 minutes before the interview is insufficient time to read assimilate the information and formulate appropriate answers.

[196]In his claim form he says anyone with a disability of anxiety is immediately and overwhelmingly at a disadvantage as what is pressure for me will be a crippling and overwhelming mental and physical attack that activates all of my negative characteristics and engages the need to fight flight or freeze. He is critical of the provision of the questions and the scenario at the same time, stating that this automatically provides multiple levels of conflicting focus and that as someone with ADHD he finds this unmanageable. Conclusions on PCPS

[197]I find that the Respondent had a policy or practise that applicants would be tested using a scenario. I find that the policy or practise was that candidates were provided with questions 30 to 35 minutes before the interview and that they were required to read assimilate and process the information as suggested by the Claimant.

[198]I also find that there was a practise as set out in the Hampshire Constabulary promotion framework, updated in March 2020 both consciously building in the assessment of performance under pressure where appropriate.

[199]Taking into account the legal guidance on the meaning of PCP I find that the Respondent did operate the policy alleged by the Claimant.

[200]However I make no finding of fact at this stage as to whether or not, the use of the scenario was intended to, or did create a pressurised environment as alleged by the Claimant.

[201]This is a matter that will need to be determined having heard all the evidence at the final hearing. whilst it is evident that the Respondent did have a practise set out in the promotion framework that practise is qualified by the words where appropriate. Did the Respondent have a policy or practise of asking double questions and or questions which lacked clarity or were ambiguous in the interview?

[202]The Claimant has set out the questions which were asked in his interview and asserts that they were questions which lacked clarity or were ambiguous and which he considers were double questions.

[203]The Respondent has explained how they chose unselected questions for interview and asserts that they do not consider the questions to have been either double questions or to be double questions.

[204]The Claimant asserts that both questions had two elements to them. The first question requires him to consider both a time when he has successfully resolved a conflict and to consider a time when he had resolved a conflict which occurred due to views or opinions that clashed. This is a question asking for the Claimant to think about two things, not just one. I accept that from the Respondent’s point of view the second part is a qualification of the first.

[205]The second question please tell me about a time when you have admitted your own limitations and sought additional assistance for the good of the organisation, is as a matter of construction two questions, not just one.

[206]The Respondent accepts that it asked these questions, and the Claimant says that it is these questions which he considers were double questions lacking clarity and were ambiguous.

[207]The fact that the Respondent went through a careful process to select and design these questions does not mean that they were necessarily ones which did not have an impact on a neurodiverse person. I accept that the aim was to ask clear questions.

[208]I conclude that the Respondent did operate a PCP of asking the questions as set out by the Claimant and I conclude that the Claimant experienced them as double questions which lacked clarity. The question for the employment tribunal at final hearing will be whether or not it was proportionate for the Respondent to use these questions, rather than other questions, taking into account the Claimant’s disabilities along with all other factors. Did the Respondent operated practise of arranging meetings after 2:00 PM

[209]The evidence of the Respondent was that there was no practise of generally arranging meetings at 2:00pm. The Claimant gives evidence of a number of meetings which were arranged at 2:00pm or later and I find that there were meetings arranged after 2:00pm in the afternoon. The Respondent does not dispute this, and says that meetings were arranged for the convenience of those who needed to attend.

[210]I find that there were instances were meetings which the Claimant had hoped to attend were arranged for 2:00pm or later in the afternoon.

[211]I have reminded myself that the term policy criterion or practise does not imply a rule which is always followed, and can refer to something which is done on occasions. since meetings clearly were arranged on occasions at or after 2:00 PM it is right to say the Respondent had a practise of arranging some meetings after 2:00 in the afternoon Did the Respondent have a PCP of not allowing officers to bring psychiatric assistance dogs into the workplace.

[212]There is no dispute that the Claimant wanted to bring his dog Koda into the workplace with him and there is no dispute that he was not permitted to do so.

[213]In his witness statement Mr Garth Jones states that he had a meeting with the Claimant in a formal one to one on 15 December 2021.

[214]At that meeting there was discussion about proposed reasonable adjustments and Mr. Jones says he was able to agree all of them except the use of the Claimant’s dog as an assistance dog. He said he was required to take advice within the force and did so. He states that the force made a decision in January 2022 that the reasonable adjustment in relation to the Claimant's dog Koda could not be accommodated.

[215]He says he met with the Claimant on the 2 February 2022 to discuss the reasonable adjustments.

[216]He asserted that he first became aware of that there was an ongoing issue with Koda shortly after he had become the Claimants line manager for a second time towards the end of July 2022. At that point Mr. Jones was temporarily promoted to Detective Chief Inspector within the scientific services department. At that point he asked DI Hall to take over as the Claimants first line manager.

[217]DI Hall reported that the Claimant had attended at digital forensic laboratory with his dog Koda. He said DI hall had sent him away and instructed him to return without Koda.

[218]Mrs Cannings a senior HR advisor within corporate services department of Hampshire County Council gave evidence to the employment tribunal about her involvement with the Claimant and about her role in assisting and advising DI Alex Hall in relation to the Claimants sickness absence management in October 2022. She also makes reference to the alleged policy of not allowing officers to bring psychiatric assistance dogs into the workplace.

[219]She disagrees that they had such a policy and asserted in her witness statement that the Respondent had a policy of considering requests for reasonable adjustments on a case by case basis and in line with relevant policies and the Equality Act 2010, including in relation to assistants dogs.

[220]She says that she supported DI Alex Hall and Mrs McCarthy in seeking advice and guidance from occupational health regarding the Claimants request to bring his psychiatric assistance dog into the workplace. She says the fact that they sought advice indicates that there was no policy as alleged by the Claimant. She says that following taking of advice, a decision was made that the Claimant could not bring his dog into work

[221]Mrs McCarthy says that she was first aware of matters relating to the Claimant and his dog Koda and the request that the dog be allowed into work as a reasonable adjustment in November 2022.

[222]She says at that point she was asked to scope policy or protocol on dogs at work, following a request being raised by the equality and inclusion team manager.

[223]Prior to that date there was no stated or formal policy setting out how the Respondent would deal with requests for the attendance of assistance dogs in the workplace.

[224]She says, and I accept, that at that point in November 2022, the Respondent considered it necessary to develop a policy to ensure a consistency in the approach of managers to those with health conditions who are subject to risk assessments; to protect the welfare of the animal; to take account of the need not to disrupt the safe operating of the Respondents business and to take into account the need to protect the public.

[225]She says that the Respondent did have two police officers and a staff member with agreed PTSD who had use of assistance dogs in place as reasonable adjustments. This was as advised by the Respondents health and safety advisor and occupational health. She says the dogs were specifically trained and accredited and insured by service dogs UK, a member of the assistance dogs UK. She said the dogs were not permitted to accompany the officer whilst carrying out operational duties.

[226]In November 2022 Mrs McCarthy asked for a case conference to understand the issues in respect of the Claimant's request to be accompanied by his dog and this took place on the 30 November 2022

[227]She was provided with occupational health reports but felt they lacked sufficient detail and so she sought further clarification from occupational health .

[228]In January 2023 the Claimant repeated his assertion that he should be allowed to bring his dog to work as an assistance dog. Mrs McCarthy replied that further occupational health advice was required. No permission was given to the Claimant at this point.

[229]When giving her evidence and in answer to questions asked by me, Mrs McCarthy stated that the default position in respect of the request for any dog to be brought into work would be that they were not permitted.

[230]She also agreed that the position in respect of a dog referred to as an assistance dog would be that it would not be permitted to be brought into work unless it was agreed by senior managers.

[231]I understood this to mean that whilst exceptions or agreements could be made to allow a dog into the workplace, the starting point was that they were not allowed, unless such an agreement was made.

[232]In the Claimant's case the decision appears to have been made by a senior member of the human resources team. The effect of any decision made was that Mr. Parker was not allowed to bring his support dog in to work with him.

[233]Mrs McCarthy explained that there were a number of considerations, starting with any recommendations made by occupational health as to the utility of an assistance dog. Further considerations would be whether there were any health and safety concerns and Mrs McCarthy stated that she was aware that there was a risk assessment form which could be carried out. She stated that there were also considerations about whether the dog was trained by an accredited or recognised trainer and whether or not there were health and safety issues taking into account the work being done by the officer and whether or not the dog would come into contact with members of the public for example.

[234]However, at the point that the Claimant's requests were being considered there was no policy and there was no clear pathway for him or his managers to follow, in order to gain permission to utilise his assistance dog in the workplace.

[235]I find that instead there was a starting point of not allowing the assistance dog but that there were a number of conditions or requirements, which amounted to exceptions to the general rule that dogs, even assistance dogs would not be allowed into the workplace.

[236]Put another way the default position of the Respondent was that an assistance dog would not be allowed in the workplace unless the Respondent considered that a range all factors had been satisfied.

[237]The Respondent asserts that the fact that there were other workers who had been allowed to bring psychiatric assistance dogs into the workplace indicated that there was no PCP of refusing them.

[238]I disagree. The fact that some individuals were able to convince the Respondent that they should be allowed to bring the dogs in, was an exception to the usual practise of not allowing assistance dogs into the workplace. Whilst there was no formal policy there was a practise as indicated by the treatment of the Claimant, which I am satisfied would also have applied to others.

[239]Had the Respondents not had such a practise, the default position would have been that anyone could bring an assistant's dog into the workplace unless they did not satisfy certain requirements.

[240]I conclude that the Respondent did have a practise of not allowing assistance dogs to be utilised in the workplace. I accept that there could be exceptions to that practise.

[241]I also accept that the Respondent may well have had genuine and l reasonable concerns about the use of assistance dogs in the workplace. Those matters will need to be canvassed before the final employment tribunal, because the Respondent will need to prove that its application of its practise to the Claimant was a proportionate means of achieving a legitimate aim. Did the Respondent have a PCP of appointing an officer of a rank senior to the complainant in a grievance to investigate an officer’s grievance.

[242]The Respondent's written policy on conflict resolution includes a provision that during a formal grievance a first line manager or a second line manager will be appointed as a conflict resolver.

[243]Mr Doughty, stated in his evidence that in most cases a grievance would be dealt with by an officer senior to the complainant.

[244]The evidence of Superintendent Philip Jones which I accept was that he did not know whether there was a practise of appointing a rank senior to the complainant but that he would suggest if a grievance was made against a senior officer it would be deemed important that someone of similar rank was appointed so that they would be comfortable challenging the person grieved against if necessary. he considered that in most cases he was aware of grievances would be heard by somebody more senior to the person bringing the grievance.

[245]Again, bearing in mind that a PCP does not have to operate in every single circumstance, I conclude on the basis of the evidence I have heard that it was the practise of the Respondent to appoint an officer of a rank senior to the complainant in a grievance to investigate an officers grievance.

[246]For a claim for direct discrimination, under section 13(1) of the EqA a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[247]Direct discrimination claims require a comparison as between the treatment of different individuals i.e., individuals who do not share the protected characteristic in issue. In doing so there must be no material difference between the circumstances relating to each individual (section 23 EqA). The Tribunal therefore must compare 'like with like'.

[248]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.

[249]In respect of the burden of proof, there is a two-stage process for analysing the complaint. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons (Igen -v- Wong

[2005] EWCA Civ 142

as affirmed in Ayodele -v- CityLink Ltd

[2018] ICR 748

[250]We also note the recent decision of Efobi v Royal Mail Group Ltd

(2021) ICR 1263

which confirmed that the reverse burden of proof remains good law under the EqA.

[251]Also, considering Madarassy v Nomura International Plc

[2007] ICR 867

, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”.

[252]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.

[253]In Igen the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ but made it clear that a finding of ‘unexplained unreasonable conduct’ is a primary fact from which an inference can properly be drawn to shift the burden.

[254]Discrimination arising from disability (Section 15 Equality Act 2010)

[255]Section 15 of the Equality Act states: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[256]We remind ourselves that the correct approach to the operation of section 15 was set out at paragraph 31 by Simler P in the case of Pnaiser v NHS England

[2016] IRLR 170

. In essence, as summarised by Harvey at Q [1468], the position is:(1) Was there unfavourable treatment and by whom?

(2) What caused the impugned treatment, or what was the reason for it?

(3) Motive is irrelevant.

(4) Was the cause/reason 'something' arising in consequence of the claimant's disability?

(5) The more links in the chain of causation, the harder it will be to establish the necessary connection.

(6) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(7) The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.

(8) It does not matter in which order these matters are considered by the tribunal.

[257]At paragraph 31(b) of Pnaiser, Simler P emphasised the focus of the analysis to be on the state of mind of the alleged discriminator as to the underlying reason for the allegedly unfavourable treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but it must have at least a significant (or more than trivial) influence on the mind of the person alleged to have caused the unfavourable treatment.

[258]In terms of knowledge, there need only be actual or constructive knowledge as to the disabilities themselves, not to the causal link between the disability and its consequent effects which led to the unfavourable treatment.

[259]It was submitted in the written submissions of Respondent’s Counsel (paragraph 119) that … “What the “something” is that the C alleges was the cause of the relevant unfavourable treatment “involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something": see City of York Council v Grosset

[2018] ICR 1492

per Sales LJ at [37]. An example of how that analysis works in practice is given in the same paragraph, where reference is made to Charlesworth v Dransfields Engineering Services Ltd, EAT (Simler J),

UKEAT/0197/16/JOJ

, unrep., judgment of 12 January 2017, “in which the reason the claimant was dismissed was redundancy, so that no liability arose under section 15 EqA, even though the redundancy of the claimant's job happened to be brought into focus by the ability of the defendant employer to carry on its business in periods when he was absent from work due to a disability. In that case, therefore, the relevant "something" relied upon by the claimant was the claimant's absence from work due to sickness, but he was not dismissed because of that but because his post was redundant.”.

[260]We were also referred to Basildon & Thurrock NHS Foundation Trust v Weerasinghe

UKEAT/0397/14/RN

in the Claimant’s written submissions and that … “As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.”.

[261]Indirect discrimination – section 19

[262]Indirect discrimination occurs where an employer applies a provision, criterion or practice (“PCP”) to those without the employee’s protected characteristic; it puts those with the employee’s protected characteristic at a particular disadvantage when compared to those without the characteristic; it puts the employee at that same disadvantage; and the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim: s.19(2) EqA.

[263]In relation to the protected characteristic of disability, a reference to persons who share a protected characteristic is a reference to persons with the same disability: s.6(3) EqA.

[264]The justification defence allowed by virtue of s.19(2)(d) EqA places the burden on the employer but gives rise to an objective test, requiring the Tribunal to carry out its own assessment as to whether the means adopted were proportionate, weighing the real needs of the employer against any discriminatory effects of the requirement: Hardy & Hansons plc v Lax

[2005] ICR 1565

, CA. To show that its actions were proportionate, an employer does not need to show that it had no alternative course of action; rather, it must demonstrate that the measures taken were “reasonably necessary” in order the achieve the legitimate aim(s): Barry v Midland Bank Plc

[1999] IRLR 581

(HL).

[265]Reasonable adjustments

[266]Section 20 of the Equality Act states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. … (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put to a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

[267]Paragraph 20(1) of Schedule 8 to the EqA provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know and could not reasonably be expected to know that a disabled person has a disability and is likely to be placed at a disadvantage by the employer’s PCP, the physical features of the workplace, or a failure to provide an auxiliary aid — paragraph 20(1)(b).

[268]Knowledge, in this regard, is not limited to actual knowledge but extends to constructive knowledge (i.e., what the employer ought reasonably to have known). In view of this, the EAT has said that a tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:a. first, did the employer know both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially?

b. if not, ought the employer to have known both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially? Secretary of State for Work and Pensions v Alam

2010 ICR 665

, EAT.

[269]It is only if the answer to the second question is ‘no’ that the employer avoids the duty to make reasonable adjustments.

[270]We were also referred to Wilcox v Birmingham CAB Services Ltd EAT 0293/10, and that Underhill P took the view that the effect of the knowledge defence in the predecessor Disability Discrimination Act was that an employer will not be liable for a failure to make reasonable adjustments unless it had actual or constructive knowledge both(i) that the employee was disabled, and

(ii) that he or she was disadvantaged by the disability in the way set out in section 4A(1) (i.e. by a PCP or physical feature of the workplace). The second element of this test will not come into play if the employer does not know the first element (paragraph 62 of the written submissions of Respondent’s Counsel).

[271]There is guidance in the case authority of Environment Agency v Rowan

[2008] IRLR 20

[2008] ICR 218

as to what needs to be found in such claims, namely that in order to make a finding of failure to make reasonable adjustments there must be identification of:a. the provision, criteria or practice applied by or on behalf of an employer; or

b. the physical feature of premises occupied by the employer;

c. the identity of non-disabled comparators (where appropriate); and

d. the nature and extent of the substantial disadvantage suffered by the claimant.

[272]Respondent’s Counsel reminded us (paragraph 51 of his written closing submissions) that according to the Equality and Human Rights Commission: Equality Act 2010 Code of Practice “Code of Practice: Employment” at 6.13, an “auxiliary aid” is something which provides support or assistance to a disabled person. Examples given are an adopted keyboard for someone with arthritis or text to speech software.

[273]Further, (at paragraph 55 of the written closing submissions of Respondent’s Counsel) in Ishola v Transport for London

[2020] EWCA Civ 112

it was noted that the phrase PCP should be construed widely but remarks were made about the legislator’s choice of language (as opposed to the words “act” or “decision”.). Simler LJ stated … “I find it difficult to see what the word “practice” adds to the words if all one off decisions and acts necessarily qualify as PCPs…. If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice.” It is just done; and the words “in practice” add nothing….The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee…To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply…. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. …In context and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP of “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. …in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to “practice” as having something of an element of repetition about it.”

[274]At paragraph 57 of the written submissions of the Respondent … “There must be some causative nexus between the disability relied upon and the substantial disadvantage which is asserted (Thompson v Vale of Glamorgan Council

UKEAT/0065/20/RN

). Has the claimant suffered a substantial disadvantage by reason of his disability and as a result of the application of the PCP?”. Then, at paragraph 58 … “Only once the employment tribunal has gone through the steps in Rowan will it be in a position to assess whether any adjustment is reasonable in the circumstances of the case, applying the criteria in the EHRC Code of Practice. The test of reasonableness is an objective one. The effectiveness of the proposed adjustments is of crucial importance. Reasonable adjustments are limited to those that prevent the PCP from placing a disabled person at a substantial disadvantage in comparison with persons who are not disabled. Thus, if the adjustment does not alleviate the disabled person’s substantial disadvantage, it is not a reasonable adjustment. However, the threshold that is required is that the adjustment has ‘a prospect’ of alleviating the substantial disadvantage. There is no higher requirement. The adjustment does not have to be a complete solution to the disadvantage. There does not have to be a certainty or even a ‘good’ or ‘real’ prospect of an adjustment removing a disadvantage in order for that adjustment to be regarded as a reasonable one. Rather it is sufficient that a tribunal concludes on the evidence that there would have been a prospect of the disadvantage being alleviated: Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075 at [17].”.

[275]Harassment – section 26 Equality Act 2010

[276]Section 26 provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[277]The Claimant needs to establish, under section 26 EqA, unwanted conduct relating to his disability ((1)(a)), which had the effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him ((1)(b)).

[278]In deciding whether the conduct had the effect set out in (1)(b), the Tribunal must take into account the Claimant’s perception, other circumstances, and whether it was reasonable for the conduct to have that effect ((4)). The section (1)(b) test, as a result of section (4), has an objective element.

[279]As we are referred to by Respondent’s Counsel in his written closing submissions at paragraph 36 …. “The harassment has to be “related to” a particular protected characteristic. The tribunal is required to identify the reason for the harassment with a particular focus on the context of the particular case. In Unite v Naillard

[2017] ICR 121

the EAT indicated that section 26 requires the tribunal to focus upon the conduct of the individual(s) concerned and ask whether their conduct is associated with the protected characteristic. In that case it was not enough that an individual had failed to deal with sexual harassment by a third party unless there was something about the individual’s own conduct which was related to sex. The focus will be on the person against whom the allegation of harassment is made and his conduct or inaction. So long as the tribunal focuses on the conduct of the alleged perpetrator himself it will be a matter of fact whether the conduct is related to the protected characteristic. As stated in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

… “there must still … be some feature or features of the factual matrix identified by the tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found have led to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.”.

[280]Then at paragraph 37 … “Whilst the victim must have felt or perceived her dignity to have been violated or an adverse environment to have been created, it is only if it was reasonable for the victim to hold this feeling or perception that the conduct will amount to harassment. Much depends on context. See the guidance Richmond Pharmacology v Dhaliwal

[2009] ICR 724

revisited in Pemberton v Inwood [2018] IRLR where Underhill LJ stated … “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances—subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”.

[281]We also note paragraphs 38 to 40 of the written closing submissions of Respondent’s Counsel: “38. The context of the conduct and whether it was intended to produce the proscribed consequences are material to the ET’s decision as to whether it was reasonable for the conduct to have the effect relied upon. As stated in Dhaliwal: ‘If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.”39. The Tribunal will also be aware of the comment of the CA in Grant v HM Land Registry

[2011] IRLR 748

it which it was said that “Tribunals must not cheapen the significance of the words 'intimidating, hostile, degrading, humiliating or offensive environment'. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.

40. Finally, although not recorded in the list of issues, all of the C’s complaints involve the assertion that he has been subjected to a detriment by the R. If that is not the case, his claim fails. The concept of detriment has been considered by the courts on a number of occasions. There is a detriment if "a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment": see per Lord Hope in Shamoon v Chief Constable of the Ulster Constabulary

[2003] UKHL 11

;

[2003] ICR 37

, para 35. Accordingly, an unjustified sense of grievance would not fall into that category. That would be the situation where the claimant genuinely considers himself or herself aggrieved, but objectively considered, there are no reasonable grounds for so thinking.”

[282]Time Limits

[283]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable.

[284]Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.

[285]Section 123(3)(b) of the EqA, failure to do something, is to be treated as occurring when the person in question decided upon it. Where there is no evidence to the contrary, s.123(4) of the EqA 2010 provides a default means by which the date of the ‘decision’ can be identified, either when there is an inconsistent act or alternatively the expiry of the period in which the employer might reasonably have been expected to do it.

[286]An ongoing situation or continuing state of affairs amounting to discrimination was considered in Hendricks v Metropolitan Police Commissioner

[2003] IRLR 96

. It is not sufficient to rely on an alleged overarching or floating discriminatory state of affairs without that state of affairs being anchored by discrete acts of discrimination.

[287]We note from the written closing submissions of Respondent’s Counsel (paragraph 9) … “An act does not extend over a period simply because the doing of the act has ´continuing consequences' over a period. For example, a decision not to appoint an applicant for a particular post or not to upgrade his post (as in Sougrin v Haringey Health Authority

[1992] ICR 650

) has continuing consequences (eg as to pay). But the act which produced those consequences took place at a fixed moment of time and did not, therefore, extend over a period of time: see e.g. Rovenska v General Medical Council [1994]

EAT/163/93

per Mummery LJ.”.

[288]We note the principals from the cases of British Coal v Keeble

[1997] IRLR 336

EAT; Robertson v Bexley Community Service

[2003] IRLR 434

CA; and London Borough of Southwark v Afolabi

[2003] IRLR 220

CA;

[289]We note the factors from section 33 of the Limitation Act 1980 which are referred to in the Keeble decision:

[290]The length of and the reasons for the delay.

[291]The extent to which the cogency of the evidence is likely to be affected by the delay.

[292]The extent to which the parties co-operated with any request for information.

[293]The promptness with which the claimant acted once he knew the facts giving rise to the cause of action.

[294]The steps taken by the claimant to obtain appropriate professional advice.

[295]We note that the Court of Appeal in the Afolabi decision confirmed that, while the checklist in section 33 of the Limitation Act provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in section 33 should not be elevated into a legal requirement but should be used as a guide. The Court suggested that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).

[296]It is also clear from the comments of Auld LJ in Robertson that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard … "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule".

[297]Also noting paragraphs 15 and 16 from the written closing submissions of Respondent’s Counsel: “15. In most cases there will be strong reasons for a strict approach to time limits: O’Brien-v-Department for Constitutional Affairs

[2008] EWCA Civ 1448

per Maurice Kay LJ at [2912]. 16. If the ET has heard the evidence the underlying merits of the claim are also relevant to the exercise of discretion: see Rathakrishnan v Pizza Express

[2016] ICR 28313

at [17].”

[298]THE DECISION

[299]The allegations of direct disability discrimination numbered 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.5, 4.1.6, 4.1.7 and 4.1.10, the allegations of discrimination arising from disability numbered 6.6 and 6.7, and the allegations of failure to make reasonable adjustments 14.2, 14.3 and 14.4 are dismissed following their withdrawal by the Claimant.

[300]Despite the withdrawals made by the Claimant, the allegations in this claim remain extensive. To assist the Tribunal, time was taken at the start of the hearing for the Claimant to clarify before evidence began which somethings arising from the list of issues at paragraph 7.1 (of which there are 56 listed things) relates to which disability and/or unfavorable treatment. The Claimant was only able to do this for issues 6.1 a, and 6.1 b before it became proportionate to instead continue with the evidence. It was therefore made clear that the Claimant would be expected to put to each Respondent witness he alleged a something arising complaint against, what he says they did that was unfavourable and what the something arising from disability was that he asserts as the reason. The Claimant did not do this for every allegation, and it became clear as the evidence was heard that the Claimant was often asserting that the somethings were things that arose in consequence of the asserted unfavourable treatment (for example 7.1 gg. Rejection sensitive dysphoria (RSD)) as opposed to the cause of the unfavourable treatment. It also appeared to the Tribunal panel that the Claimant was asserting matters based on his current perspectives and views as opposed to the facts of the matter at the time. This is supported by the closing submissions the Claimant made, in particular paragraph 3 of those which invites us to consider the impact of all of the incidents rather than viewing them as individual.

[301]Addressing the complaints of harassment first:

[302]Raising characteristics of the Claimant’s disabilities as negative and expecting the Claimant to manage them to prevent impacting on others:a. 29/05/2018 TR 14 Email from GJ (relating to anxiety and depression). As noted in our fact find the parts of the 1:1 note the Claimant complains about do not relate to anxiety and depression. Further, from the contemporaneous 1:1 notes and the evidence of GJ (paragraphs 7 to 13 of his witness statement), which are consistent, we accept the account of GJ about this matter. We find that the reason comments were made at this 1:1 were because of the nature of the meeting, which was a routine meeting, not arranged for any purpose other than as a regular supervisory input. At that GJ as the Claimant’s line manager wanted to raise with the Claimant issues raised about the Claimant’s communication style. The Claimant confirmed that he wanted to work on that area. We also note the email the Claimant sent to GJ on the 20 September 2021 (page 1771). At the end of the email the Claimant writes … “I had a conversation with one of your team recently who felt really supported by you and felt you had gone out of your way. Reminded me of the support you gave me when I needed it.”. This contemporaneous statement by the Claimant is in our view consistent with what we have found as the facts in this matter concerning the actions of GJ towards the Claimant up to this point.

b. 22/11/2021 TR 87, 89, 90 Emails from Alex Hall. As we have noted in our fact find, what is said by AH does appear to relate to matters that would arise from the Claimant’s disability. We do not find though, accepting what AH tells us, that he intended to create a humiliating or offensive environment for the Claimant. AH is not mocking the Claimant for a reason related to his disabilities or making deliberately unpleasant comments about him. The Claimant has not suggested that this was the case. As to being a “detriment” we note that the Claimant did submit his promotion application, so it has not dissuaded him, which would have supported this was something the Claimant might legitimately feel aggrieved about. Further, when viewed objectively, we do not find it can reasonably be viewed as having had the proscribed effect (i.e. had the effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment).

c. 13/12/2021 TR 93 Email from Gareth Jones. We were not referred to an email of GJ dated 13 December 2021 by the Claimant, so what is alleged has not been proven.

d. 15/12/2021 TR 96 Email from Gareth Jones. The email is GJ sending a copy of the 1:1 notes to the Claimant for approval. The Claimant does not respond back at the time with any concerns. The 1:1 notes demonstrate that GJ is supportive and wanting to adapt to help the Claimant. We view this matter in the same way as allegation b above. When viewed objectively, we do not find it can reasonably be viewed as having had the proscribed effect.

e. 04/12/2021 TR 92 Email from Dsupt Rowlandson. We have noted in our fact find that what is said is overall a positive assessment. TR also clarified in cross examination that where he talks about harnessing energy and passion, he did not mean it negatively (like harnessing an animal), but positively to focus it in the right way. Further, that it is important to do that so that others buy in to ideas, improve and take forward. We view this matter in the same way as allegation b above. When viewed objectively, we do not find it can reasonably be viewed as having had the proscribed effect.

[303]The Claimant was removed from project meetings he had been an integral part ofa. 29/09/2021 - Briefing with Head of CID.

b. From September 2021 Joint task working group with TVP.

c. 01/04/2022 - Planning meeting discussing the Claimant’s report or in the consideration of a new paper.

[304]As we have noted in our fact find, the Claimant confirmed that he links his removal from the future meetings to the way he conducted himself at the meeting on the 15 June 2021. TR gives his reasons for what happened in his witness statement and confirmed in his oral evidence he did not think about the Claimant’s conduct at the meeting on the 15 June 2021 beyond that date and it played no part in the decisions taken as to his attendance at future meetings. We accept what TR tells us as it is consistent with the documents presented, and in particular the Claimant being invited to the July 2021 meeting. It has not been proven that the reason for the Claimant’s nonattendance to any meeting after the 15 June 2021 was for a reason related to disability.

[305]The Claimant was replaced without consultation in training roles he was subject matter expert on, questioned over why he had been asked to provide information or training: a. 18/11/2021 TR 78 Email from Alex Hall. We accept what AH tells us which is consistent with what is written in the email. We do not find that the Claimant was replaced by AH and the email relied upon was not sent for a reason related to disability.

[306]The Claimant’s communications about his disabilities requiring a change to the workplace environment were disregarded and informed incorrect:a. 13/12/2021 TR 93 Email from Gareth Jones. We were not referred to a return to work interview or email dated 13 December 2021 of GJ by the Claimant, so what is alleged has not been proven.

b. 23/11/2021 TR 89 and 90 Emails from Alex Hall. This was not a matter put to AH by the Claimant or clarified by the Claimant in his evidence, so we are unable to find as a matter of fact that this matter as alleged is proven on the balance of probability.

c. 02/02/2022 TR 116 Email from Gareth Jones. We accept what GJ tells us which is consistent with documents presented in this case. The Claimant appears to be frustrated by having GJ appointed above him. The dialogue they are having is not related to the Claimant’s disability.

d. 02/06/2022 Report from ADHD coach

e. 17/06/2022 report from ADHD Coach

f. 14/07/2022 report from ADHD Coach.

[307]About d, e and f (above), these ADHD Coach report allegations were not put to the Respondent’s witnesses. It has not been proven that the alleged unwanted conduct happened. The Claimant has just told us about his belief they were not read by his supervisors and not proven they were disregarded and informed incorrect.

[308]Management referrals to Occupational Health were critical of the Claimant’s disabilities and demeaned the Claimant between 2016 and 2022. This was not an allegation pursued during the evidence. We have not had any evidence drawn to our attention to enable such an allegation to be found to be proven on the balance of probability.

[309]In respect of the harassment complaints, we have therefore either not found the alleged thing to be proven as alleged, or to be related to disability, or where it was, when viewed objectively, we do not find it had the proscribed effect.

[310]Considering then the complaints of direct disability discrimination that the Claimant still pursues (4.1.8 and 4.1.9): 311. 31 August 2022 DI Hall ordering the Claimant to leave work with his

[312]In cross examination the Claimant confirmed that the issue for him is being told to leave with his assistance dog, and the emails are background. The Claimant confirmed that his complaint is being refused access for his assistance dog. He confirmed that he is not complaining about the emails themselves. It is clear the reason for what has happened is the Claimant is being instructed to act in accordance with the management position at that time. What is happening is not because of the Claimant’s disability. 313. 1 September 2022 DI Jones threatening the Claimant with disciplinary action for utilising his assistance dog in the workplace as follows: a. 01/09/2022 TR 216 email from DI Jones. We agree with what GJ tells us. The reason he has written what he has in the email is to reflect the management position at that time. That is the reason for what is communicated. It is not because of the Claimant’s disability.

[314]Therefore, as to the complaints of direct discrimination, the Claimant has not proven any facts to infer a discriminatory reason to move the burden of proof to the Respondent. In any event we accept the Respondent’s reasons.

[315]Next to consider the complaints of arising from disability:

[316]In the period 29 May 2018 to 1 April 2022 DI Jones sidelining and demeaning the Claimant during supervision sessions as follows: depression) [the Claimant accepts discrimination does not arise in relation to ‘things arising’ from ADHD, PTSD and ASD]. From the contemporaneous 1:1 notes and the evidence of GJ (paragraphs 7 to 13 of his witness statement), which are consistent, we accept the account of GJ about this meeting. We find that the reason comments were made at this 1:1 were because of the nature of the meeting, which was a routine meeting, not arranged for any purpose other than as a regular supervisory input. At that GJ as the Claimant’s line manager wanted to raise with the Claimant issues raised about the Claimant’s communication style. The Claimant confirmed that he wanted to work on that area. We find that the Claimant is seeking to criticize this 1:1 based on his current perspective and view of matters, rather than based on what happened at the time. b. 19/10/2018 TR 18 Return to work Interview by DI Gareth Jones. Having considered the notes of the return to work interview (pages 158 to 160) and what GJ tells us about this meeting in paragraphs 23 to 25 of his witness statement, we do not find any evidence of the Claimant being sidelined or demeaned. c. 20/02/2019 TR 24 Return to work Interview. There is no evidence to suggest that the Claimant was sidelined or demeaned at this meeting. We accept the evidence of GJ which is consistent with the contemporaneous documents, and that this was a supportive management approach, keeping matters informal and then increasing the Claimant’s absence triggers. Investigations. The Claimant clarified during cross examination that he does not complain about this meeting, so this allegation has not been proven as alleged. e. 22/11/2021 TR 85 Email chain. This appears to be the emails on page 1399. Considering paragraph 51 of the Claimant’s witness statement it is apparent that this is where the “something” arises as a consequence of the emails, rather than it being the cause of the emails. f. 13/12/2021 TR 93 Return to work interview. We were not referred to a return to work interview or email dated 13 December 2021 of GJ by the Claimant, so what is alleged has not been proven. says he accepts the Claimant was sidelined. GJ addresses this in paragraph 78 of his witness statement … “I recall Mr Parker did express that he felt he had been sidelined. In response to this, I noted that I could see why he felt that way, however it was not his job to attend certain meetings anymore, it was mine now I was in post. I was the accountable officer in the team who had to take decisions within a project framework, and who was responsible for those decisions within that framework. (Within that framework, I was accountable to the Senior Responsible Officer (SRO) – in some cases this would be D/Supt Tim Rowlandson, or on others, it would be Police Staff Head of TVP SSD, Kay Hannam, to whom I could refer decisions if necessary). However, in this moment, I was trying to express empathy with how Mr Parker said he felt. For completeness, my expression of empathy was in no way connected or related to Mr Parker’s health position; this was a purely managerial situation and I felt that this was a helpful way to show that I had heard what had been said.”. We accept what GJ tells us which is consistent with the facts we have found. This is not a reason arising from the Claimant’s disability. h. 24/12/2021 TR 109 Occupational Health Report. The Claimant does not reference this report in his witness statement. GJ refers to these allegations in paragraphs 88 to 91 of his witness statement stating he is unclear how the Claimant is seeking to rely upon the OH report. As the Claimant has not clarified this in his evidence this matter is not proven patronizing. The “somethings” the Claimant relied upon in support of this allegation explain why the Claimant may have found what was written by GJ demeaning, but they do not explain what the Claimant did that arose from his disability to generate what was written by GJ. responses (TR 123 relevant to this discussion). We accept what GJ tells us which is consistent with the contemporaneous documents presented. What he does is not because of something arising from the Claimant’s disabilities. k. 04/03/2022 TR 134 Meeting with D/Supt Rowlandson. The Claimant confirmed in cross examination that he does not complain about this meeting, his reference to it is because it was at that they discussed how he felt sidelined following the meeting in June 2021. This is therefore not a complaint to be determined. It is not in dispute that TR and the Claimant discussed the June 2021 meeting at the March 2022 meeting. TR confirmed to us in oral evidence that it was a surprise when the Claimant brought it up as he did not consider it to be an ongoing issue, it not factoring in his considerations about the Claimant. about room numbers. We accept what GJ tells us about this allegation, which is consistent with the Claimant’s position of GJ being wrong and him being right. This is not because of something arising from the Claimant’s disability. m. 21/03/2022 TR 145 Team meeting. This was not an allegation put to GJ by the Claimant, which is not surprising as the Claimant did not recall why he asserted it was some form of discrimination. We therefore do not find this matter proven as alleged. n. 31/03/2022 TR 150 Email from Gareth Jones. GJ refers to this matter at paragraphs 131 to 137 of his witness statement. What GJ describes as to what he did and why, we find is him acting reasonably in the role of the Claimant’s line manager. He is simply stating in his email his observations from reviewing the information the Claimant has sent previously. o. 01/04/2022 TR 155 Email from Gareth Jones. This overlaps with the previous allegation and is addressed by GJ in paragraph 133 of his witness statement. As with the previous allegation we find that GJ is acting reasonably in his role as the Claimant’s line manager.

[317]From 15 December 2021 to 4 August 2022 highlighting characteristics of the Claimant’s disabilities as negative attributes requiring change such as saying that the Claimant’s attention to detail led DI Jones to question the Claimant’s judgment as follows:a. 15/12/2021 TR 96 121 Notes DI Gareth Jones. The email of the same date is GJ sending a copy of the 1:1 notes to the Claimant for approval. The Claimant does not respond back at the time with any concerns. The 1:1 notes demonstrate that GJ is supportive and wanting to adapt to help the Claimant. We do not find proven what is alleged.

b. 24/12/2021 TR 109 Occupational Health Report. The Claimant does not reference this report in his witness statement. GJ refers to these allegations in paragraphs 88 to 91 of his witness statement stating he is unclear how the Claimant is seeking to rely upon the OH report. As the Claimant has not clarified this in his evidence this matter is not proven

c. January 2022 Occupational Health Disclosure document p 14 of 40. 143. GJ addresses this at paragraph 97 of his witness statement stating that it is unclear as to what the Claimant is referring to. The Claimant does not clarify the matter in his own witness statement or through his questions of GJ so this matter is not proven as alleged.

d. 01/04/2022 Email following telephone conversation. As with the previous allegation (allegation 6.1o from the agreed list of issues referred to above) we find that GJ is acting reasonably in his role as the Claimant’s line manager. We do not find proven what is alleged.

e. 04/08/2022 DI Hall sending aggressive email reference the Claimant’s non-compliance with a calendar update. We agree with what AH tells us. What is written in his email is not “aggressive”.

[318]From 19 October 2018 to 31 August 2022 DI Hall subjecting the Claimant to the Respondent’s sickness absence process as follows:a. 19/10/2018 TR 18 Return to Work Interview by DI Gareth Jones. The Claimant was subjected to the Respondent’s sickness absence procedure and the sickness was because of depression so arising from the Claimant’s disability. The Respondent’s legitimate aims for this allegation are not in dispute (issue 7.3.2). We accept that the Respondent has the following legitimate aims: i. Effective management and supervision of officers. ii. The fair and effective management of employees’ sickness absence and support of employees. iii. The provision of effective policing to the communities and organisations of Hampshire and Isle of Wight. As to proportionality it was confirmed by the Respondent’s witnesses that they can manage sickness absence through an informal process, before going to a formal process. As was confirmed when GJ was cross examined about the Claimant’s absence in 2018 he used his permitted discretion to keep it at the informal stage as he knew the absence related to the Claimant’s anxiety and depression (page 168). This in our view is a proportionate means of achieving the legitimate aims. We accept this justification by the Respondent.

b. 20/02/2019 TR 24 Return to Work Interview. The Claimant was subjected to the Respondent’s sickness absence procedure and the sickness was because of depression so arising from the Claimant’s disability. As already noted, the Respondent’s legitimate aims are accepted. As to proportionality we have noted that the Respondent has discretion to keep the absence process at the informal stage, which is what happened for the Claimant. It also has the option and did adjust the trigger points to give the Claimant higher trigger points.

c. 02/02/2022 TR 115 Managing Sickness Absence meeting. The Claimant was subjected to the Respondent’s sickness absence procedure but the reason for sickness is withheld (page 1719). However, even if the reason was something that arose from the Claimant’s disability, as already noted the Respondent’s legitimate aims are accepted. As to proportionality we have noted that the Respondent has discretion to keep the absence process at the informal stage, which is what happened for the Claimant. It also has the option and did adjust the trigger points to give the Claimant higher trigger points.

d. 31/08/2022 TR 206 DI Hall Sickness Informal Discussion. For the reasons already given and the facts found, we accept that the Respondent by treating the Claimant’s sickness informally was acting proportionately in achieving the accepted legitimate aims.

[319]From 22 July 2022 to 31 August 2022 DI Hall subjecting the Claimant to the Respondent’s performance management process as follows:a. 22/07/2022 TR 183 Occupational Health Report. The Claimant confirmed this was background information as opposed to a complaint.

b. 31/08/2022 TR 205 Return to Work Interview.

c. 31/08/2022 TR 206 Sickness Informal Discussion.

d. 31/08/2022 TR 208 121 notes.

[320]In relation to allegations b to e above, as already noted, we accept that it is legitimate and proportionate for AH to identify inappropriate behaviour or conduct in order that it can be discussed and identified, the cause of the behaviour discussed, and in light of that discussion appropriate support (including possible adjustments) can be provided. The legitimate aims as set out in issue 7.3.3 are not in dispute and we accept them. Further, we accept that this is a proportionate means of achieving those legitimate aims.

[321]Between 15 June 2021 and 2 September 2022 removing the Claimant from management meetings and joint conferences, such as the AESCO conference replacement, Digital Hub Planning, Joint TVP/Hampshire digital programme as follows:a. 03/11/2021 TR 75 the Claimant’s last attendance at joint project meeting. As we have noted in our fact find, the Claimant confirmed that he links his removal from the future meetings to the way he conducted himself at the meeting on the 15 June 2021. TR gives his reasons for what happened in his witness statement and confirmed in his oral evidence he did not think about the Claimant’s conduct at the meeting on the 15 June 2021 beyond that date and it played no part in the decisions taken as to his attendance at future meetings. We accept what TR tells us as it consistent with the documents presented, and in particular the Claimant being invited to the July 2021 meeting. It has not been proven that the reason for the Claimant’s nonattendance to any meeting after the 15 June 2021 was for a reason arising from disability. 322. 22 November 2021 DI Hall attempting to prevent submission of the Claimant’s promotion application due to characteristics associated with the Claimant’s disability i.e. that he lacked emotional intelligence, would interrupt frustrated as follows:

b. 22/11/2021 TR 88 Email from DCI Colin White confirming conversation with DI Alex Hall

[323]About these allegations the Claimant clarified in cross examination with reference to the application form (page 1416) that he complains about what AH said in the phone call, saying he becomes fixated, frustrated, flippant and about emotional awareness and that it is for the Claimant to work on. AH addresses this issue in paragraphs 51 to 72 of his witness statement. He describes how he was providing honest feed back and that he could not prevent the Claimant submitting the application even if he wanted to. We have not found what is alleged to be harassment for the reasons set out above.

[324]The Respondent’s legitimate aims for the arising from allegations are not in dispute (issue 7.3.4). We accept that the Respondent has the followinga. Effective management and supervision of officers

b. An effective promotion application process for Detective Inspectors of Hampshire and Isle of Wight

[325]We accept that it is legitimate and proportionate for AH to identify inappropriate behaviour or conduct in order that it can be discussed and identified, the cause of the behaviour discussed, and in light of that discussion appropriate support (including possible adjustments) can be provided. We accept (as submitted by Respondent’s Counsel, paragraphs 137 c and d of the written closing submissions) that this is a proportionate means of achieving these legitimate aims.

[326]DI Jones being critical of the Claimant’s working memory and attention to detail which are both characteristics of the Claimant’s disabilities: a. 03/03/2022 TR 133 Email from DI Jones following telephone conversation. As was found with allegation 6.1 j from the agreed list of issues, in respect of this allegation we accept what GJ tells us which is consistent with the contemporaneous documents presented. What he does is not because of something arising from the Claimant’s disabilities. 327. 31 August 2022 DI Hall ordering the Claimant to leave work with his

[328]As we have already noted in respect of the direct disability discrimination complaint that relates to the same allegations, in cross examination the Claimant confirmed that the issue for him is being told to leave with his assistance dog, and the emails are background. The Claimant confirmed that his complaint is being refused access for his assistance dog. He confirmed that he is not complaining about the emails themselves. It is clear the reason for what has happened is the Claimant is being instructed to act in accordance with the management position at that time. What is happening is not because of 329. 1 September 2022 DI Jones threatening the Claimant with disciplinary action for utilising his assistance dog in the workplace as follows: a. 01/09/2022 TR 216 email from DI Jones. We agree with what GJ tells us. The reason he has written what he has in the email is to reflect the management position at that time. That is the reason for what is communicated. It is not because of the Claimant’s disability or because of something arising from the Claimant’s disability.

[330]For the arising from complaints, causation has not been established for the majority of those and for those where they could be said to have occurred because of something arising from the Claimant’s disability, we find the actions of the Respondent were justified.

[331]Considering then the remaining complaints of a failure in the duty to

[332]The question of knowledge by the Respondent of the Claimant’s disability has already been determined in the Judgment of Employment Judge Rayner. Relevant knowledge of substantial disadvantage remains in dispute.

[333]With the withdrawals made by the Claimant there are four numbered PCPs as set out in the agreed list of issues relied upon as causing substantial disadvantage and requiring reasonable adjustments, where PCP 1 is asserted in three parts.

[334]Employment Judge Rayner determined that the Claimant’s claim that the Respondent operated the following PCPs, was well founded, and succeeded:a. A policy or practice that applicants would be tested using a scenario in a manner intended to create a pressured environment both in terms of time, because candidates are provided with the questions 30-35 before the interview, and because of the requirement to read, assimilate and process that information in a manner which enables them to provide clear responses in an interview to questions which the applicants have not previously had sight of (The Pressure PCP)

b. A policy or practice of asking double questions and/or questions which lacked clarity or were ambiguous in the interview (The Questions PCP) e. A practice or policy of appointing an officer of a rank senior to the complainant in a grievance to investigate an officer’s grievance (The Grievance PCP).

[335]Within the agreed list of issues there is also a PCP referred to as “PCP -1A” which in relation to the promotion application process for Detective Inspectors in 2020/2021 and 2021/2022, is that the Respondent had a policy or practice or criteria that a written application with a word limit was required as the first stage in the process. This PCP was not disputed by the Respondent, so, we find it was operated.

[336]In respect of PCP1 and the 2020/21 application we have found as a matter of fact that there cannot be a failure in the duty to make reasonable adjustments at this point as the process had not concluded to identify the substantial disadvantage and what was needed before the Claimant withdrew from the process. The Respondent did not have the relevant knowledge of substantial disadvantage.

[337]As to PCP1 in respect of the 2021/22 application and PCP6, the Assistance Dogs PCP. It is on the 19 and 30 November 2021 that there is a workplace needs assessment conducted by Debra Sumpton with the Claimant (pages 236 to 244). It is signed off by the Claimant on the 12 December 2021 (page 244).

[338]The workplace assessment notes that … “When asked what the most important outcome he was looking for was, Matt described this as: 1. Understanding and awareness of his ADHD from his colleagues and supervisors and 2. Support with the Inspector’s promotion process.”. To facilitate these outcomes certain reasonable adjustments were recommended:a. Extra time for completing workplace tasks. Where possible, tasks should not be issued ‘last minute’

b. Genius Within Coping Strategy Coaching - 6 x 2 hour sessions with ADHD specialist coach

c. 1 x Genius Within Co-Coaching session

d. Remain in current project role whilst Coping Strategy Coaching ongoing (approx. 6 months)

e. Home working

f. 2 x Monitors at docking station for home

g. Psychiatric Assistance Dog (Matt’s own dog)

h. Supervisor weekly or bi-weekly meetings to discuss workplace issues

i. Adjustments for NPPF Inspector Board.

[339]About the psychiatric assistance dog it was noted at that time that it … “Requires risk assessment – contact H&S Lead, Dave Leverett to arrange.” And “Contact Alex Thompson, Wellbeing Case Worker, for guidance also (as manages Force Wellbeing Dog).” (page 243).

[340]As to “Adjustments for NPPF Inspector Board” it was noted: “• Matt to be given the competency areas and/or questions in advance and have extra time to prep questions.• He should then be allowed to take his notes into the board to refer to.

• Board members to be made aware Matt may take a bit longer to digest the question and formulate a reply. Process for getting/confirming the adjustments:

• Matt to tick the ‘disability’ box on the application and email hc.vacancies@hants.gov.uk requesting above adjustments and request written confirmation.”

[341]By email dated 15 December 2021 GJ sends the Claimant an updated Personal Supportive Passport. The updated passport is at pages 1432 to 1439. Of the suggested adjustments 2 of the 8 (not including the adjustments for the NPFF Inspector Board) are considered not reasonable. The first … “Extra time for completing workplace tasks. Where possible, tasks should not be issued ‘last minute’”, it is confirmed … “1. In our discussion, we agreed that this is probably not necessary, and will be dealt with by good communication. Matt is able to complete tasks within timescales, dependant on circumstances. There will be occasions when he will need to be able to ask for extra time and he will be able to do so.”. Also … “ Psychiatric Assistance Dog (Matt’s own dog)”, it is confirmed … “7. There needs to be a wider organisational consideration of the impact on others in the workplace on bringing Matt’s own dog into the workplace. Issues for others may include allergies and phobia, and consultation will need to be had with managers of other teams”.

[342]We were also referred to an OH referral dated 15 December 2021 where reference is made to the Psychiatric Assistance Dog … “2. Psychiatric Assistance Dog [Matt's own dog] … There needs to be a wider organisational consideration of the impact on others in the workplace on bringing Matt's own dog into the workplace. Issues for others may include allergies and phobia, and consultation will need to be had with managers of other teams that will be affected. The decision on this adjustment is therefore deferred. In any event, Matt's dog will not be undergoing the assessment and training process until next year.” (page 624).

[343]Chronologically on the 16 December 2021 the Claimant requests adjustments to the promotion process (email at page 280). We have also noted that at this stage (by emails dated 20 December 2021 (pages 253 and 256) the Claimant refers to Koda being trained to nuzzle him if he raised his voice. Also, that Koda was not competent at lying alongside the Claimant when he worked at a computer and was “not quite there yet” at walking at heel in a car park (page 253). Also, according to the Claimant he needed to bring Koda into the workplace in order to train him to behave appropriately as a psychiatric assistance dog in the workplace (page 256). We accept as submitted by Respondent’s Counsel, if that is the case then Koda was not trained to operate as a psychiatric assistance dog in the workplace because he did not come into the Respondent’s workplace and there is no evidence that he was trained in any other workplace.

[344]We also note from the email dated 20 December 2021 from David Leverett responsible for health and safety (page 1780) that the dog will need to have the accredited course for it to be a reasonable adjustment, rather than just bringing a dog in. The email notes that all the other dogs they have had in have been trained dogs.The Claimant has not evidenced that at this stage (December 2021) Koda was trained as a psychiatric assistance dog.

[345]By email dated 12 January 2022 (pages 277 and 278) the Claimant is offered reasonable adjustments for the promotion interview. The Claimant replies by email of 12 January 2022 (pages 276 to 277) and writes … “… Once again thank you so much for the considerations that the force is putting in to this. After living most of my life in the dark I can’t tell you how much of a change it is to have my limitations recognised and for me to have the opportunities to show all of the positives my condition brings.”. An email is sent in reply to the Claimant confirming there is no problem in agreeing what he is asking for (page 276).

[346]What the Claimant seeks is agreed to, he is appreciative of what is agreed. Through this correspondence it is not demonstrated that the Respondent had knowledge of any substantial disadvantage to the Claimant that had not been adjusted for. This is further supported by an email dated 21 February 2022 which the Claimant emails the Respondent’s recruitment team thanking them for the additional time (page 1452) …. “I am thankful for the additional time in respect of the interview. It was really important as was the assurance that additional time was available within the interview”.

[347]It is only after the Claimant finds out he was not successful in the promotion process that by emails dated 8 and 9 March 2022 he raises concerns about the promotion board. It is also at this time that the Respondent is alerted to the issue of the Claimant being disadvantaged by the practice of arranging meetings after 2pm (the “Meetings PCP”) (PCP5) (paragraphs 117 to 119 of GJ’s witness statement).

[348]In response to this by email dated 10 March 2022 (page 1797) GJ requested that meetings scheduled for 2:00pm, be moved to the morning which was positively accepted subject to managing diary clashes (page 1796). The Claimant has not presented evidence that he was requiring any further adjustment after this date. We consider that a 2 day period is a reasonable period to have taken the action the Respondent did to comply with a duty to

[349]On the 1 June 2022 an OH Report is produced (pages 1489 to 1496). At page 1495 and 1496 it is recorded that … “Matthew considers it is still a critical issue regarding his request to allow him to be accompanied by his therapeutic Dog when at work. I am unable to comment on this if it is an organizational decision that this has been declined. However I would say that an Emotional Support Dog provides calmness, stability, reduces anxiety can promote productivity.”.

[350]It was confirmed by the Claimant in cross examination with reference to an email from Colin White dated 4 October 2022 (page 434) that the Claimant started to train Koda to respond to breathing change in early September 2022, and before that he was not trained to do so. The email also notes Koda going to other members of the group if they exhibited a high level of stress. It was put to the Claimant that this was Koda acting as a therapy dog for the class. The Claimant said it was him recognising stress, but he would return to him afterwards.

[351]By email dated 13 October 2022 (page 449) it is noted that there is no formal assessment available to ‘pass’ or ‘fail’ the dog, but a charity had recommended that if the dog was accompanying a police officer it should be trained by a professional trainer. With reference to the email dated 27 October 2022 (page 606) the Claimant confirmed that Koda had not been signed off by a trainer. He confirmed that Koda was not specifically trained to respond to two related behaviours on command. Koda had therefore not met the training requirements at this stage. Further, with reference to the advice about assistance dogs from Ms Norquoy of the Psychiatric Assistance Dogs Foundation on 27 October 2022 (pages 605 to 606), Koda did not meet that definition of an assistance dog.

[352]We also have noted what Anneke McCarthy confirmed in cross examination, that the Respondent thought it was reasonable to ask if Koda was an “assistance dog” as the Claimant was working as a police officer. We accept this would be reasonable in the context of a deployable police officer role.

[353]We also note the Claimant’s “spiral sensory report” of 19 April 2023 (page 565) which refers to the weight of his dog on his lap being very comforting to the Claimant, as was the smell and feel of the fur. There is no reference to Koda being trained to execute specific tasks. This means that there are other things than bringing Koda into the work place that would have served the Claimant’s need.

[354]We also note from the email at page 600 from OH dated 11 July 2023 that questions as to the Claimant’s need for Koda and Koda’s trained status remain unanswered at this point.

[355]During the cross examination of OD reference was made by the Claimant to a Southampton Autism, Assessment Service Diagnostic Assessment Report dated 29 August 2023 about him (pages 1664 to 1677). OD’s attention was drawn to page 1675 and the use of stress balls to assist with controlling the environment and reducing sensory stress. Reference was also made to calming input assisting with emotional regulation. The Claimant asserted that it was for these reasons he needed an assistance dog as the contact and smell assisted him. OD noted that use of a stress ball was very different to an assistance dog. Importantly, we note that what this report does not state is that the Claimant required the use of Koda as an assistance dog at work.

[356]It is important to remind ourselves of the issues that arise when considering a complaint of a failure in the duty to make a reasonable adjustment. The PCP needs to put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability. Also, the Respondent needs to know, or could reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage.

[357]The PCP in this case is being a policy or practice of not allowing officers to bring psychiatric assistance dogs into the workplace (The Assistance Dogs PCP). The Claimant says that the substantial disadvantage for him was he was unable to utilise his medical aid, namely his assistance dog, Koda, at the workplace which acted on his ability to manage severe anxiety, causing his symptoms to be exacerbated. However, there is no PCP asserted that an officer was not allowed to bring Koda into the workplace. It is not in dispute that the Respondent does allow psychiatric assistance dogs in the workplace if they meet certain criteria (see paragraph 124 iii to 128 of the witness statement of Anneke McCarthy). As Respondent’s Counsel submits (paragraph 80) the Respondent’s decision being particular to Koda was a on one-off.

[358]We accept as submitted by Respondent’s Counsel that no categories of dog have been prescribed for the purposes of section 173(d) of the Equality Act (paragraph 67 of the written closing submissions). Further, that Koda did not meet the definition of Ms Norquoy of the Psychiatric Assistance Dogs Foundation on 27 October 2022 (pages 605 to 606) (paragraph 68).

[359]We note from the document submitted by the Claimant on day 10 of this hearing, being a letter from Dr C Vivian dated 6 November 2023 concerning the Claimant’s ill health retirement and fitness for work, that it does not comment that any reasonable adjustments were necessary or could alleviate the Claimant’s conditions (see in particular paragraphs 58 to 60).

[360]We accept what is submitted by Respondent’s Counsel (paragraph 70) that the Claimant has not established that he suffered a particular disadvantage by not being permitted to bring Koda into work. As that is not proven, then neither can the relevant knowledge by the Respondent of the substantial disadvantage.

[361]Further, the Claimant could have applied to bring into work a psychiatric assistance dog as defined by the Psychiatric Assistance Dogs Foundation.

[362]For all these reasons the complaint concerning the provision of an auxiliary aid (being the provision of a psychiatric assistance dog) also does not succeed.

[363]Considering the PCP7 from the list of issues, being a practice or policy of appointing an officer of a rank senior to the complainant in a grievance to investigate an officer’s grievance (the “Grievance PCP”). The Claimant says he was substantially disadvantaged by it because a senior officer is not trained in the Equality Act 2010, or sufficiently trained in equality and diversity issues, specifically disability, so as to be able to identify, consider and comprehend the points raised in the Claimant’s grievance.

[364]When asked about this PCP in cross examination the Claimant confirmed that his particular complaint is about the officer who heard the complaint. It is therefore a one-off specific issue about a particular person. The Claimant confirmed that he raised it as an issue with the Respondent after the grievance had been heard. With this factual clarification from the Claimant, the Claimant has not proven the asserted disadvantage by the PCP he is seeking to rely upon, nor that the Respondent had the requisite knowledge of it.

[365]Therefore, as to the reasonable adjustment complaints, we do not find there was a failure in the duty based on what the Respondent knew and did at the relevant time.

[366]Considering then the complaint of indirect discrimination which focuses on the promotion process. Having considered the evidence and submissions we have been presented and the findings of fact we have made, the Claimant has not proven a relevant group disadvantage.

[367]For all these reasons it is the unanimous Judgment of this Tribunal that the Claimant’s remaining complaints of direct disability discrimination, discrimination arising from a disability, indirect discrimination on the grounds of disability, failure to make reasonable adjustments and harassment related to disability, all fail and are dismissed. Approved by: