Ms S Waslin v The Chief Constable of Humberside Police: 1804292/2019

EMPLOYMENT TRIBUNALS

Case No 1804292/2019

Between

Ms S WaslinClaimant

The Chief Constable of Humberside PoliceRespondent

Before

Employment Judge Rogerson

Miss F Lawley for claimant

Miss C Widdett for respondent

Date 16 February 2020

JUDGMENT

[1]The complaint of a failure to make reasonable adjustments fails and is dismissed.

[2]The complaint of indirect disability discrimination fails and is dismissed.

REASONS

Issues(1) The issues were identified and agreed at a preliminary hearing. It was accepted the claimant was/is a disabled person at the material time by reason of hypothyroidism. The complaints made of disability discrimination were a failure to make reasonable adjustments and indirect discrimination.

(2) Reasonable adjustment complaint (i) Did the respondent on 9 and 11 April 2019 apply a provision, criterion or practice (PCP) of requiring the claimant to work beyond 6.00pm for the role in PVP(Protecting Vulnerable People)? (ii) If so, did that PCP put the claimant at a substantial disadvantage in relation to her application for that role compared to a non disabled person (one of the effects of the claimant’s disability is tiredness and Occupational, Health had advised the respondent that she could not work beyond 6.00pm). (iii) If so, did the respondent take reasonable steps to avoid the substantial disadvantage? The claimant identifies a reasonable step of allowing her “not to work beyond 6.00pm”.

(3) Indirect Discrimination Complaint (i) Did the respondent apply PCP of “requiring the claimant to work beyond 6.00pm” for the role in PVP which applied equally to all applicants for that role? (ii) Does that PCP put/would put people who share the claimant’s disability as a particular disadvantage when compared with people who do not have that disability? (iii) Does the PCP put or would put the claimant at that disadvantage? (iv) Can the respondent show that the PCP is a proportionate means of achieving a legitimate aim?

(4) Remedy (i) Has discrimination occurred, if so, what is the appropriate remedy? (ii) Has there been any failure to comply with ACAS Code of Practice, if so, was this failure unreasonable? If so, is it just and equitable to award an uplift, if so what is the appropriate amount?

Findings of Fact

[1]The Tribunal heard evidence from the claimant and for the respondent from Mrs C Baggs (Senior People Services Manager), Mr C Nicholson (Detective Chief Inspector), Ms S English (Human Resource OPS Partner). We also saw documents from an agreed bundle. From the evidence we saw and heard we made the following relevant findings of fact:1.1 The claimant is a Detective Constable employed by the respondent. It is accepted that she is a disabled person by reason of a physical impairment of hypothyroidism.

1.2 In October 2018, the claimant made a flexible working application (page 49). She was on adoption leave at the time, due to return to work on 11 February 2019. Most of the application focused on childcare requirements because the claimant and her husband (also a police officer) worked shifts and weekends. In one paragraph, she refers to her hypothyroidism and the need to keep a good routine and sleep pattern.

1.3 On 22 January 2019, the claimant met with Occupational Health providing them with her proposed shift pattern. A report was prepared dated 22 January 2019, which refers to the claimant’s flexible working requirement (page 42) (highlighted text our emphasis). “Due to Stacey’s health issues she has experienced severe fatigue issues. To support this lady, it is important for her to have routine which will enable her to have a regular rise and sleep pattern. Also, it is important for her to take her medication at regular times to help manage her condition. To support Stacey in managing her health she informs me she has submitted a flexible working pattern. Stacey and I discussed this and I would recommend she works 0800 hours to 1800 hours which would mean she works for no more than ten hours on a shift. Stacey should not work for more than five consecutive shifts but preferably this should be four consecutive shifts for the majority of her working time”.

1.4 The claimant’s flexible working application was authorised on 11 February 2019, agreeing to the shift pattern proposed by the claimant. The application process required the claimant to propose a shift pattern which complied with the flexible working framework criteria. That criteria applies to all requests for flexible working whether made on the grounds of disability, childcare or any other reason. It is the same for all departments and is clearly set out in the flexible working application form completed by the claimant. It provides the following criteria:  Shifts which are no more than twelve hours in length (or your team standard pattern)  Start time to be the same as your team pattern.  Eleven hours between shifts.  A proportionate amount of peak time working.  The proportion of time with your team/supervisor should be the percentage based on your hierarchy of need.  Rest days must follow the full-time corporate pattern.  Three days must be evenly distributed across the week (staff with three days will be expected to workforce red days unless there are exceptional circumstances).  All working patterns must be based upon fixed start times to facilitate effective force briefing an alignment with team supervision.  The PPD (Proactive/Professional Development) days should be considered as a fixed part of any working pattern.

1.5 The form requires the applicant to ensure that they have “given thorough consideration to the proposed rota and its alignment with corporate patterns and the criteria”. The process then requires the claimant’s line manager to complete the form to show support and for a more senior officer to authorise it.

1.6 The claimant’s application was approved based on the information provided by the claimant and occupational health advice, her ‘hierarchy of need’ was assessed as ‘green’ because of her disability. The respondent has different banding for different needs. ‘Blue’ applies to all, ‘Green’ identifies a ‘greater need’ and ‘Red’ identifies a ‘very substantial’ need.

1.7 On 5 February 2019, the respondent informed the claimant that her application had been approved but “this will not automatically transfer to a new role and if you are promoted or change role then you must reapply for flexible working in your new role”.

1.8 On 11 February 2019, the claimant returned to work to CID on the flexible working pattern as agreed. This was a pattern over a ‘5’ week cycle, working one weekend in 5, with no Fridays and with each working day worked from 0800 to 1800 hours meeting the limitations set by occupational health.

1.9 This was the pattern proposed by the claimant having regard to the need for alignment with the CID department and the flexible working criteria. The disability need was assessed as ‘green’ identifying a greater need for adjustments. The claimant had not been disadvantaged in any way by the flexible working procedures. She had a positive outcome to her application for flexible working after full consideration of her disability. Career progression

1.10 Shortly after her return to work the claimant decided to look for alternative work positions to try to develop her career. Her timing was odd, given that she had only just returned to a flexible work pattern arranged to suit her childcare and her disability needs. As a result, the claimant was asked if she was interested in working with the Protecting Vulnerable People (PVP) department where there was a significant need for officers with the claimant’s experience and skills.

1.11 On 9 April 2019, the claimant had a telephone conference call with Sian English(HR) and DCI Nicholson who leads the PVP department. There was a significant dispute of fact in relation to what was said in that call and we set out the positions of both parties on the pleadings and evidence presented before resolving that factual dispute.

1.12 From the claim form the relevant paragraphs are paragraph 12-14 which are set out with highlighted text showing our emphasis. At paragraph 12: “on or around 9 April 2019 the claimant was informed by Sian English of Human Resources and DCI Nicholson that she was not suitable for the PVP department due to her inability to work late shifts”.

1.13 Paragraph 13 “the claimant understands that the PVP department works predominantly with agencies such as social services and schools which largely operate during traditional office hours. She understands that a number of officers within the department work only week day early shifts. No rational was advanced by the respondent to explain why the claimant’s disability could not be taken into account by way of reasonable adjustments within the PVP department”.

1.14 Paragraph 14: “on or around 16 April 2019 the claimant received a request from Sian English to revise her shift patterns in order to accommodate and move to the PVP department. The claimant explained that her disability prevented this. The claimant requested that reasonable adjustments be made in order to support her disability. The respondent refused this request”.

1.15 The claimant asserts that as a result of this she withdrew her application to join the PVP department.

1.16 It was clear from the claimant’s pleaded case that she asserts she had been told on 9 April 2019 that she was not suitable for the role. Her disability would not be taken into account by making reasonable adjustments to her shift pattern and no rational was provided to explain why her disability could not be taken into account. The claimant’s witness statement

1.17 The claimant says she was aware of, a number of people in the PVP department over the years who had health problems for whom adjustments had been made (paragraph 12).

1.18 On 9 April 2019, she received a telephone call from Sian English who was present on a conference call with DCI Nicholson. “Sian advised me that my shifts were not compatible with PVP’s needs. One of the reasons being that there was a need to work late shifts (beyond 6.00pm) within the department. DCI Nicholson focussed on this and expressed concern as to what would happen if I was dealing with a prisoner beyond 6.00pm. I explained the reason for my shift pattern and that I was classified as disabled under the Equality Act 2010 but attempted to reassure him saying that since my return to work I had stayed on with prisoners but could not commit to working regular late shifts as it was against the advice of the OH department and would impact on my health. I indicated that this flexibility could continue on an ad hoc basis but I could not commit to a long term working pattern that involved consistently working beyond 6.00pm” (paragraph 13).

1.19 “no alternative shifts patterns were made available to me during this telephone conversation, the onus was placed on me by Sian English and DCI Nicholson to go away and consider what I want to do. The majority of PVP work deals with agencies such as schools and social services that worked traditional hours. That is why a number of officers in PVP work day shifts or early shifts. No reasons were given why they could not accommodate my condition with reasonable adjustments” (paragraph 14).

1.20 “On 11 April 2019 I received an email from Sian English confirming our conversation. The email offered me the chance to propose a shift pattern, as long as it complied with the PVP shift pattern attached to the email. The PVP shift pattern was not compatible with the hours Occupational Health recommended meaning I would be unable to maintain a good sleep/rise medication routine if I proposed a shift pattern that complied with the request from Sian English. This was the only option made available to me and it appeared that there was no possible flexibility in relation to this” (paragraph 15).

1.21 At paragraph 19 the claimant refers to the telephone call on 16 April 2019, and says “no alternative means of accommodating my move were offered to me at this stage and I was not invited to come in and discuss matters. No alternative contacts were put forward to discuss it with. The only option on the table was to revise my shifts and to comply with the PVP shift pattern. My disability was being used as a reason for not offering me the position despite there being flexibility within PVP to accommodate me”.

1.22 “I felt that I had no option other than advising Sian English that I was withdrawing my interest in joining PVP and seeking advice on my position as it was clear that I was not wanted in the department because of my disability”.

1.23 There were no contemporaneous documents provided by the claimant to support that account. She has not challenged the respondent’s contemporaneous documents, particularly the email sent to her on 11 April 2019 summarising the call. The respondent’s case

1.24 In the ET3 response the respondent makes it clear that the claimants account was disputed relying on the contemporaneous documents. “It was confirmed throughout the call on 9 April 2019 and in the follow up email dated 11 April 2019 that the respondent was keen to work with the claimant to find a shift pattern that was suitable for her and PVP (paragraph 15).

1.25 On 16 April 2019, Ms English reiterated her desire to sit down with the claimant to discuss different work patterns but the claimant confirmed that she no longer wished to be considered for a transfer to PVP.

1.26 The respondent’s witnesses confirmed and relied upon those contemporaneous documents. The contemporaneous documents

1.27 The email of 11 April 2019 was not disputed by the claimant. It was drafted by Ms English on 10 April 2019, as a summary of the discussion that had taken place. It was sent to Mr Nicholson to confirm that it was a fair representation of the discussion. Mr Nicholson confirmed that it was and on 11 April 2019 it was sent to the claimant. The claimant did not dispute the accuracy of the email at the time the email was sent or at this hearing.

1.28 The email sets out the claimant’s current shift pattern and does state that shift pattern for CID was not be suitable for the PVP and would not be supported on transfer into PVP “however, we would happily work with you to find a shift pattern that would be beneficial for both you and the PVP”. It then sets out the detailed rational to explain why that pattern was not suitable within the PVP because:  the pattern does not follow that of any team within the PVP.  the number of working weekends disproportionate to that of the PVP.  the pattern would not enable appropriate support and supervision.  the pattern you currently work does not include any late turn shifts. 1.30 The email notes the pattern in CID was due to a medical condition and that the claimant had said the “hours and pattern were supported by Occupational Health”. The claimant was asked to provide Ms English with a copy of that advice. DCI Nicholson did ask the claimant what the position would be if the claimant had a prisoner to deal with towards her 6.00pm finishing time. The claimant’s response was that she recognised this could happen and if that did happen she would work until the job was complete. She was aware it may happen in the PVP and advised that providing she had sufficient recovery time and she was not adversely affected by such a change it was not an issue.

1.29 The meeting then records the ‘green’ assessment of need. The email sets out what that means by reproducing a HR extract explaining what that level of need means. It states: “A parent or carer seeking flexibility to manage childcare or carer arrangements and who has exhausted all reasonable childcare/carer options or an applicant has some level of need relating to a medical condition or disability to be determined by the decision maker in liaison with Occupational Health” Ms English also sets out the flexible working criteria which the claimant had already seen having that criteria in her successful application in October 2018. She records the views expressed by the claimant in that discussion: “you outlined that a move to the PVP would be something that you would welcome as well as accepting although an experienced detective there is some trepidation in relation to the subject matter in the area as well as the ways of working within the PVP. It was explained that based on this it is even more imperative that you have a pattern that works alongside a specific team in order that you have support from your colleagues and supervision. On this we would be seeking to work with you to produce a shift patterns that aligns to the below PVP shift pattern. She then sets out the PVP shift pattern and ends “we welcome you submitting a revised proposed flexible working pattern that can be viewed by the PVP SLT, taking into account the points raised above in order that we can find a workable pattern in order for you to join the PVP. If you wish to discuss further please do not hesitate to contact me or if you feel there is something that is not reflected from our conversation within this email please let me know and I look forward to hearing from you”.

1.30 It was clear from that email that Ms English was expecting further discussions with the claimant to engage jointly in a process to find a workable solution. The claimant already knew her flexible work agreement did not automatically transfer from one department to another and that she had to reapply for flexible working for any new role (paragraph 1.7 above). She also knew a process of discussion and consideration was to follow and no decision had been made about her application for the PVP role as at 9 or 11 April 2019.

1.31 We were told there is a separate process for adjustments made to ‘automatically transfer’ adjustments made with disabled police officer but the claimant had chosen not to take that route. That route has other consequences on pension/benefits career opportunities which we did not need to address in this case.

1.32 It was made clear by Ms English, that the ongoing process of discussion would involve Occupational Health advice. She highlights that point in her email because the respondent recognised the claimant had a greater level of need relating to her disability which “is to be determined by decision makers in liaison with Occupational Health”.

1.33 In cross examination, the claimant was asked why she did not provide the Occupational Health report to Ms English after intimating that she would in the call. She said it was ‘out of frustration’ accepting that she only provided it to the respondent because of these proceedings. We could not understand why the claimant would not provide this advice to Ms English at the time, if it was helpful to her position and would better inform the respondent in the decision-making process.

1.34 The claimant’s evidence at this hearing, in the light of that evidence is surprising and unconvincing. To assert as she does (see above paragraph 1.19 1.20) that she had no option, there was no flexibility offered or that the respondent was refusing to make reasonable adjustments for her disability are blatantly wrong. We preferred and accepted the respondent’s evidence of the discussion on 9 April which is accurately reflected in the email of 11 April 2019.

1.35 The email is clearly framed in language aimed at trying to find a solution so the claimant could work in PVP. The claimant was not told that she was not suitable for the role and there was no refusal to make reasonable adjustments. Ms English and Mr Nicholson envisaged further discussions with an expectation that the claimant would follow the same process she had used previously. She would provide her proposal in order that the respondent could with occupational health advice make any adjustments required.

1.36 The Occupational Health report the claimant failed to provide did not as state that the claimant could not work later than 6.00pm. Occupational Health made recommendation based on 2 disability related requirements, firstly that the claimant works for no more than ten hours on a shift, and secondly that she should not work for more than five consecutive shifts, but preferably no more than four, the majority of her working time.

1.37 The claimant accepts that she has not explained either in her witness statement or by reference to that Occupational Health report any requirement that she could not work beyond 6.00pm. She could not explain why Occupational Health did not put that in the report if they had advised that it was required as an adjustment. The position asserted in this claim is not supported by the evidence.

1.38 The claimant has not advanced any evidence that supports the PCP she relies upon applied on 9 and 11 April 2019 that puts her at a substantial disadvantage for her reasonable adjustment complaint or at a particular disadvantage for the direct disability complaint (see issue 2 (ii) and 3 (iii)). She accepts the respondent was not in a position at the time or now to understand the ‘disadvantage’ from the information that she has provided at the time or now.

1.39 On 24 April 2019, Ms English sent the claimant an email confirming the discussions on 16 April 2019 when she had ‘chased’ the claimant for an update on her email of 11 April 2019.

1.40 She says that email summarises the discussions in which the claimant confirmed her decision to withdraw her application. She records what the claimant said and she confirmed the position as she understood it from the respondent’s perspective: “You said that you felt the telephone conversations and subsequent email were not welcoming and you did not feel the PVP would welcome you into the team. I explained that this was not the case and again outlined the SLT would welcome the opportunity to meet and discuss alternative shift patterns you wish to be considered”.

1.41 Ms English did not want the claimant to withdraw her application and sought to reassure the claimant that she was welcome. The claimant’s case that on 16 April 2019 Ms English was communicating ‘a refusal to make reasonable adjustments’ is not borne out by the evidence. Ms English was chasing the claimant because she wanted to progress her application. Why would she do that if a decision had already been made that the claimant was not suitable. The only reason the application did not progress further was because of the claimant’s decision not to have any further discussions.

1.42 Ms English attempted to open the claimant’s closed door in her email of 24 April 2019. If she did not want the claimant to work in PVP a much easier option would have been to simply accept the withdrawal on the 16 April 2019.

1.43 DCI Nicholson explained how adjustments to shifts are made in the PVP department whether because of disability, childcare or other caring responsibilities. There was no reason for him not to do the same for the claimant if that was how the discussions with her had progressed. His hope was that when the claimant provided her proposed shift pattern that could be considered with the benefit of occupational health advice.

1.44 The PVP operates various shifts covering 7.00am – 10.00pm over different days working different shifts. Mr Nicholson explains this is because of the need to safeguard vulnerable people outside of office hours, which is why the rota must reflect that need. He says the claimant is wrong in her assumption of ‘office hours only’ because that is not how the PVP operates. There is also a need for officers to have close supervision to manage employee’s wellbeing and to provide support. Additionally, a new member of the team with no previous experience would require appropriate more support, advice and guidance. This requires, as far as possible, alignment of shifts with other colleagues and supervisors for support and supervision. We accepted that given that Mr Nicholson’s role as lead of the PVP he had greater working knowledge of that unit than the claimant.

The Law

[2]Section 20 and 21 of the Equality Act 2010 provide as follows: Section 20 duty to make adjustments “Where this Act imposes a duty to make reasonable adjustments on a person sections 21 and 22, and the applicable schedule apply and for these purposes a person on whom the duty is imposed is referred to as A. The duty comprises the following three requirements: 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. Section 21 Failure to comply with the duty “A failure to comply with the first second or third requirement is a failure to comply with a duty to make reasonable adjustments. Section 19 of the Equality Act 2010 Indirect discrimination(1) A person (A) discriminates against another (B), if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. For the purposes of subsection (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic. (b) it puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it. (c) It puts or would put B at that disadvantage. (d) A cannot show it to be a proportionate means of achieving a legitimate aim. Section 136 of the Equality Act sets out the burden of proof provisions “This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravene the provision concerned, the court must hold that the contravention occurred”.

(3) Subsection (2) does not apply if A shows that A did not contravene the provision.

Conclusions

[3]Miss Widdett sets out in her closing submissions the burden of proof provisions referring to the ‘two’ stage burden of proof test. Firstly, has the claimant proved facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent committed an unlawful act of discrimination? This is more than simply showing the respondent could have committed an act of discrimination.

[4]If the claimant passes the first stage then the respondent has to show that they have not discriminated against the claimant. This is often by explanation of the reason for the conduct alleged to be discriminatory and that the reason is not connected to the relevant protected characteristic.

[5]She submits that the claimant must prove facts that the respondent applied to her on 9 and 11 April 2019 a provision, criterion or practice (PCP) of requiring the claimant to work beyond 6.00pm for the role in PVP? The claimants pleaded case relies solely upon the requirement to work after 6.00pm. The respondent denies that it did apply this requirement. She submits that discussions were clearly in the initial stages when the claimant withdrew her application. The respondent had not seen the claimant’s OH report because the claimant had unreasonably failed to provide it. The claimant was invited to a meeting to discuss her shift pattern but she refused to take up the offers made for further discussion. Notably when the claimant says she was not invited to discuss matters (paragraph 19 of her witness statement) she was patently not correct.

[6]Ms Lawley offers a different interpretation of the meeting on 9 April 2019 and the email of 11 April 2019, which she said draws a ‘red line’ telling the claimant her shift pattern was unacceptable to PVP and she was unsuitable for the role. Our findings of fact (paragraphs 1.35 and 1.36) do not support her interpretation of a ‘red line’ being drawn by the respondent. It was made clear to the claimant discussions were at a preliminary stage with the intention of further discussion to explore all options with occupational health advice because of the claimant’s disability. The respondent had not applied on either the 9 or 11 April 2019, a requirement for the claimant to work beyond 6pm for the role in PVP. If at the end of the process a decision was made that the claimant was required to do so, that is when the PCP would have applied. Otherwise the respondent would not be following the processes put in place for considering and making reasonable adjustments. Those processes are required to consider what the business might reasonably need and what a disabled employee might reasonably need with occupational health advice. It was the same process the claimant had successfully used when she worked in CID to obtain reasonable adjustments.

[7]The second issue is whether the PCP puts the claimant at a substantial disadvantage for the reasonable adjustment complaint, or puts/would put the claimant at a ‘particular’ disadvantage for the indirect discrimination complaint. The claimant accepted that the occupational health report did not state as asserted that because of tiredness she “could not work beyond 6pm”. The respondent had no knowledge of any disadvantage as at 9/11 April 2019 because she had not provided them with the occupational health report which identified such a requirement. Her witness statement does not address this and does not support her case of disadvantage (see paragraphs 1.37-1.38 of our findings). The claimant has not proved she was put at/would be put at any disadvantage on 9 or 11 April 2019, or that the respondent had knowledge of any disadvantage at the material time.

[8]Ms English had confirmed to the claimant that she had already been assessed as ‘green’ because of her greater need because of her disability. She confirmed the same process for the making of adjustments was expected to be followed in PVP. The claimant was informed that process required a proposal from her in the first instance of the shift pattern she wanted to work within PVP, to then get Occupational Health advice, then for further discussion before any decision was made. The respondent had previously agreed all the adjustments the claimant had requested because her proposals were supported by occupational health and could be accommodated by that department. The claimant was told and had no reason to believe that the same positive considerations of her needs would not apply for the PVP role.

[9]Having decided that there was no PCP applied on 9 and 11 April 2019, the claimant falls at the first hurdle. She would also fall at the second hurdle because the PCP that was not applied, did not put the claimant as a disabled person at a ‘particular’ disadvantage, or at a ‘substantial’ disadvantage. This means the claimant has not proved facts from which the Tribunal could conclude she was discriminated on the 9 and 11 April 2019 and the claim fails.

[10]For the sake of completeness however, we will deal with our conclusions as to whether the PCP (that was not applied) was a proportionate means of achieving a legitimate aim, to objectively justify the indirect discrimination complaint. We do not accept the claimant’s assertions that PVP operates on traditional office hours. She has made incorrect assumptions about the PVP. Mr Nicholson leads the team and gives clear evidence explaining why that assumption is wrong. The PVP operates various shifts covering 7.00am – 10.00pm over different days working different hours. The respondent explains this is because of the need to safeguard vulnerable people outside of office hours, which is why the rota must reflect that need. There is also a need to have close supervision to manage the wellbeing of officers working in that unit and to provide support to new members of the team, with no previous experience, who requiring greater levels of support, advice and guidance. This requires as far as possible alignment of shifts with other colleagues and supervisors for that support and supervision. Those legitimate aims were not challenged by the claimant. It was also proportionate on 9 and 11 April 2019, for the respondent to have an initial discussion with the claimant about the role and the unit, to ask for further information, to expect some further discussion with the benefit of occupational health advice before making a final decision. For those reasons the complaint of indirect discrimination fails and is dismissed. The complaints made of a failure to make reasonable adjustments also fails and are dismissed.