Mr P Kerr v British Transport Police: 2204809/2023

EMPLOYMENT TRIBUNALS

Case No 2204809/2023

Between

Mr P KerrClaimant

British Transport PoliceRespondent

Before

Employment Judge Forde

In person for claimant

Mr Webster (instructed by Counsel) for respondent

Date 19 August 2025

JUDGMENT

The unanimous judgment of the Tribunal is as follows: Indirect discrimination

[1]The complaint of indirect disability discrimination is not well-founded and is dismissed. Unfavourable treatment because of something arising in consequence of disability

[2]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed. Failure to make reasonable adjustments for disability

[3]The complaint of a failure to make reasonable adjustments is not is well-founded and is dismissed.

REASONS

[1]The Respondent is the national police force for the railways and says that it is responsible for providing policing services to rail operators, staff and passengers throughout England, Scotland and Wales as well as policing the London Underground, Docklands Light Railway, the Midland Metro Tram System, Croydon Tramlink, Tyne and Wear Metro, Glasgow Subway and Emirates Airline. The Respondent says that it operates in a unique policing environment that is not restricted by county lines meaning officers and staff provide specialist policing across the whole country.

[2]Before this hearing it was agreed by the parties that the Claimant has served in the police force since 29 April 1991 and was until the end of his employment on 29 September 2023 a Detective Sergeant Major, Serious and Organised Crime Team (hereinafter referred to as “MSOC”).

[3]He brings disability discrimination claims under S.15 and S.20/21 of the Equality Act 2010 (EqA). He relies on angina and a heart condition together with PTSD and anxiety and depression as disabilities (as more fully particularised below).

[4]In addition, following a case management hearing before employment Judge Clarke on 14 March 2024, the claimant was permitted to amend his claim to include a claim of constructive unfair dismissal. Within the case management order which can be found at page 64 bundle, the judge describes the scope of the amendments permitted at that time under the heading “Amendment” at order number five: “By consent, the claimant’s claim is amended to include a claim that the respondent failed to make reasonable adjustments to sick pay policy as set out in the list of issues below and that the respondent’s discriminatory treatment of the claimant led to his constructive dismissal (subject to jurisdictional issues related to the time limit). This application to amend has been deemed to have been made at this hearing.”

[5]At paragraph 45 of the case management order, the judge sets out the following: “he pursues a claim related to his dismissal under the equality act 2010, as set out in the list of issues below.”

[6]It is important to set out the background to this amendment being allowed at the time that it was because it is clear from what is said within the case management order that the claimant is not pursuing a freestanding claim constructive unfair dismissal. Instead, it forms part of his discrimination claim.

Procedure

[7]at the preliminary hearing on 14 March 2024, the second preliminary hearing in the claim, the full merits hearing was listed to take place between 9 – 18 December 2024 in person, with a panel comprised of a judge and two nonlegal members.

[8]The hearing did start on 9 December 2024. However, the day before the last scheduled day of evidence, the claimant became unwell and was unable to attend the tribunal. In fact, he had been admitted into hospital, Therefore, it became necessary to rearrange the hearing which was adjourned part heard. 9.

[10]The hearing was rescheduled to start on Monday, 21 July 2025. However, on Sunday, 20 July 2025, the tribunal became aware that Miss Plummer, one of the nonlegal members, was unwell and unable to attend the hearing. Further, the parties had been made aware that Miss Plummer is due to retire from the employment tribunal at the end of August 2025. Therefore, the tribunal would have to hear the case before Miss Plummer’s retirement in order for the hearing to go ahead with her attendance. 11.

[12]The judge discussed this with the parties at the start of the hearing on 21 July 2025. The judge indicated that it was his view that the matter should proceed with a panel of two namely employment Judge Forde and Mr Alleyne, pursuant to s.4(9) of the Employment Tribunals act 1996 which says the following: “Where a tribunal is to be composed of more than one member, the tribunal may proceed in the absence of one or more of the members chosen to compose it if— (a)the parties to the case agree, and (b)at least one of the members who is present is an Employment Judge.”

[13]The joint presidential guidance on panel composition which took effect from 29 October 2024 identifies the need for employment tribunal is to keep panel composition under review. It identifies at paragraph 24 the need to review the composition of the panel where one or more of the members is unavailable for the full duration of the hearing. This is the case here. I advised the parties that I was minded to make the direction that the case should proceed with a panel of two on the basis that Miss Plummer was unavailable, I was unaware of when Miss Plummer would or might be available to sit that the respondent’s counsel Mr Webster indicated that he was unable to find availability in his diary between now and the end of August when Miss Plummer retires, and that myself and Mr Lane also had commitments which might prove problematic for a potential later listing.

[14]The claimant indicated that it would be his preference to have the case heard by a panel of three on the basis that he felt a panel of three was more likely to be fairer and reasoned in its findings than a panel of two. However, and begrudgingly, the claimant agreed with the respondent that the least worst option here would be the case to proceed and therefore, satisfying the provision within section 4(9) of the ETA 1996. The tribunal proceeded as a panel of two.

[15]In terms of the attendance of witnesses, it was necessary to convert the hearing to a hybrid hearing so that all witnesses could provide evidence to the tribunal. This was the case for two of the witnesses relied upon by the claimant who remain employed by the respondent and whose attendance was provided for by witness orders issued by the tribunal in December 2024 namely in relation to Mr Inquietti and Mr Winters. A further direction was issued to enable the parties to attend the handing down of judgement remotely following an application by the respondent’s counsel. That application was not opposed.

The claim

[16]The Claimant’s claim focuses on a requirement that he transfer to General CID at London Bridge for a six- month period with immediate effect.

[17]The Claimant’s first direct line manager in MSOC was Detective Inspector Paul Attwell. DI Attwell’s line manager was Detective Chief Inspector Sam Blackburn. DCI Blackburn’s line manager was Detective Superintendent Sarah White.

[18]The Respondent says that in October 2022 the Claimant withheld information from the Respondent’s Professional standards Department (PSD) in relation to a misconduct incident involving another officer namely who for the purposes of the proceedings will be known as DC “A” (who reported to and was under the line management of the Claimant). The details of the allegation concerning DC A (hereinafter referred to as “The Issue”) are immaterial for the purposes of this tribunal’s consideration. What is agreed is that the claimant was aware of the issue through his personal involvement in the factual matrix that comprises the issue.

[19]There is a dispute between the parties as to the communication of The Issue to DI Attwell by the claimant. It is the respondent’s case that when the claimant was asked whether he was aware of the of the facts underpinning The Issue on 5 October 2022 replied that he did not. However, by 7 October 2022 according to DI Atwell, this had changed and the claimant contacted DI Attwell to discuss with him what he knew and provided details of his personal involvement in The Issue. It was DI Attwell’s view that the claimant had been “intentionally dishonest” with him when responding to “...a direct question about a potentially serious incident involving an officer under both mine and his direct line of supervision...”. Words of DI Atwell in an email.

[20]There followed a referral to the respondent’s Professional Standards Directorate who were tasked to investigate the claimant’s conduct. Mrs Saund of PSD reported to D/Supt White and Ch.Supt Peter Fulton of PSD her findings and recommendations in an email dated 15 November 2022 in which she said the following: “DS Kerr was asked by his supervisor if he had any knowledge of the incident involving DC A to which he responded no, following this it was DS Kerr who sought out his supervisor to come forward and give him an open and transparent account of his knowledge and involvement. I understand the concerns around his integrity in initially denying any knowledge and omitting the full details however, as DC A supervisor it may be that DS 3 311 Kerr’s actions may have been reasonable to manage his team members wellbeing. This is not a concern around operational dishonesty and therefore would not meet the threshold for misconduct but I acknowledge there could also be a suboptimal response which clearly needs addressing. Home Office guidance is clear and specifically sets out – “where line managers identify a low level conduct matter of underperformance which is clearly suitable to be handled under the reflective practice review process, they should not seek to refer the matter to the appropriate authority for recording and severity assessment in order to refer the case to the reflective practice review process, but instead should handle the matter locally as part of their normal line management duties.” In actioning this locally it will be for you to determine the most appropriate course of action.”

[21]D/Supt White made the decision that a move within the Crime command, to the Criminal Investigation Department (CID) for six-months was in order. Her reasons for doing so was because she considered that there had been a clear breakdown in the relationship between the claimant and DI Attwell and, following other previous incidents involving other Detective Inspectors in her command she considered the claimant’s presence to be “not tenable” within MSOC. She justified her decision by saying that if management within her command were unable to trust or work effectively with the claimant, then this would pose a risk to both. Her team's ability to effectively investigate serious crime, but also to the welfare and management of the staff at the claimant supervised. Accordingly, she thought it was in the interests of the claimant and MSOC that the claimant moved to another department in her division. She communicated this decision to the Claimant in writing on 17 November 2022.

[22]An essential element of the claimant’s claim is that the proposed move to CID and its location. The respondent’s MSOC team is located at Baker Street. CID is also based in London at its London Bridge location. D/Supt. White considered that the move would have no negative impact for the claimant in terms of location. As will be seen, the claimant did not agree. She also felt that the move presented a good opportunity for the Claimant to allow time for reflection and time for the Claimant to work on his management skills and relationships, with a view to returning to MSOC in the future.

[23]The claimant was vehemently opposed to a transfer. He disputed the factual finding of dishonesty. What the claimant says is that he discussed DC A’s welfare and leave with DI Attwell on 6 October 2022 and that in terms of further information she says: “....we needed to keep the reasoning of his sickness from the other team members as it was very personal, this was agreed” Further “There was no deceit or dishonesty here as it was done to protect DC A’ from any form of gossip and was in agreement with Paul Attwell”.

[24]In evidence before the tribunal, the claimant went further to say that he had given an assurance to DC A’s wife that he would not do so. The tribunal found the following passage from the claimant’s cross examination to be instructive: Mr Webster [Respondent’s counsel]: you knew something significant had happened? Claimant: yes Mr Webster: but you don’t raise with DI Attwell on either 4 or 5 October 2022? Claimant: yes, on the request of DC A’s wife And further: Claimant: the issue at the forefront of my mind was his welfare and his PTSD. Mr Webster: you’re not a psychiatrist Claimant: Never said I was, but I have the condition and I am a friend and I have known him for 20 years. Mr Webster: if not a BTP issue, why not raise with Mr Attwell? Claimant: because his welfare needed to be raised and notified

[25]Hence, there are two different accounts of what was said by the claimant to Dc Attwell with the claimant saying that that the issue DC A’s welfare were not in consideration at the time of the meeting on 5 October 2022. When it was put to the claimant in cross examination that he could have raised the issue with DI Atwell, he responded: “At no time did I lie or mislead DI Attwell. My concern was for DC A's well-being".

[26]Detective Chief Superintendent White relied on both the findings of PSD and DI Attwell to support her decision to move the claimant under the respondent’s relevant move policy known as Movement of Officers or “MOO”. It is the respondent’s case that DCS White relies on DI Atwell's account in order to support her decision to move the claimant . Although the claimant explained in cross examination that he did not accept the fact that she had sincerely accepted DI Atwell's account, and did so on the basis that he believed that sheDCS White, was not telling the truth. When asked, what motive would DCS White have for having an insincere motive, the claimant responded that he had no idea. The claimant was clear that he was not putting forward a formal basis of an improper motive on behalf of the decision maker, DCS White.

[27]It is DCS White's evidence that, following the PSD directive, that the matter should be dealt with locally. Both she and Detective Chief Inspector Blackburn met with the claimant on 16 November 2022. The meeting had been arranged at short notice following receipt of the decision from PSD. DCS White explains her decision to arrange the meeting at short notice as a conscious decision and, made in the knowledge that the claimant might have the opportunity to consider his behavior and discuss some of the issues with other officers involved in the incident.

[28]During the meeting, the parties exchanged views as to the merits and application of DCS White's decision to move the claimant. DCS White justifies the move on the basis that it falls within her discretion as detailed within the respondent’s relevant guidance. It was not disputed in evidence that DCS White had the authority to move the claimant to another office and another posting.

[29]There is a dispute between the parties as to the amounts of notice provided to the claimant of the move that DCS White had directed would take place within 28 days of her decision. DCS White relies on the respondent’s Movement of Officers Guidance (“MOO”). A copy of which was located within the bundle. In accordance with that guidance, an officer may be transferred to another police station.

[30]As to the basis of the formulation of her decision, DCS White says that she was mindful of the claimant’s medical conditions or disabilities when making her decision to move him to General CID. She understood that the claimant was again suffering with PTSD and depression. However, it was her position that the decision she reached was one where shehad considered both the operational necessity to move the claimant as well as his disabilities and that in the round, it was her view that the move was reasonable and considerate.

[31]During the course of this meeting, DCS White says that she informed the claimant that his shift roster would not change for 28 days and that the CID department head, Superintendent Nick Sedgemoor was aware of the of the claimant’s situation as regards his health and would be accommodating with the claimant to ensure that where necessary flexible working arrangements would be put in place. In particular, DCS White says in her statement: “the claimant would be an extra to the usual roster of staff in general CID, so it was highly likely that Superintendent Sedgemoor would be able to accommodate the claimant’s request to meet his flexible working needs”. DCS White says that she did not feel it necessary or appropriate to adjust the claimant’s shift times prior to him joining General CID as she had given him a grace period of 28 days with the promise of no changes to his shift time and nor did the claimant ask her to do so. She goes on to say that the claim was free to make an immediate flexible working application but did not do so and that she was entirely satisfied that Superintendent Sedgmore would be accommodating to the claimant’s needs and that he would be the best person place to make the necessary arrangements within his own team.

[32]As already noted, the claimant vehemently opposed the move to the London Bridge office. he recorded his displeasure at the decision in an email which could be found at pages 315-317 of the bundle. In that e-mail. Payment sets out a factual explanation as to how He saw the events that unfolded between him and DI Atwell and, as detailed above. He went on to explain that he considered the move to be a penalty. And disputed that there had been a breakdown of trust between himself and DI Atwell. He reinforces the view that he felt that he was being penalised by using that word. He postulates a number of alternatives to the move proposed by DCS White. Identifying units within her command, namely SIU, FIB or possibly another unit that had been run by a Detective Sergeant who was about to retire. He also floated the possibility Of mediation between himself and Di Atwell, a possibility that Di Atwell had rejected out of hand. Further, the claimant says the following: “I will not move to General CID as mentioned I feel I am being punished for no reason and this is even more of a punishment post. If you decide after reading the above that this is still your course of action, then you will be leaving me with no alternative than to go sick. With stress caused by this decision. It is as explained not where I want to go with this, but feel there is no other options and I am being backed into a corner unfairly. Going sick will also have a massive adverse effect on current investigations. Which we've discussed are long protracted ones in the office and if I am not available to assist in answering questions etcetera, then these jobs will suffer”.

[33]In Evidence, DCS White said that she considered the claimants responses. She considered what the claimant had to say about the move to London Bridge, and in particular that it was below him as being central to the claimant’s objections to the move. Further, she said that the claimant did not provide a reason as to why he would go off with stress, Given the nature in which the claimant communicated this information to her, DCS White considered the claimant’s disposition as set out to be more of a threat than a reason.

[34]DCS White agreed to review the claimants e-mail containing his objection and agreed that she would review whether or not any other roles within the division were open to the claimant which met her identified aim, namely of restoring trust in the claimant and working relationships as well as addressing the claimant’s management and supervisory skills. She detailed her final decision on the matter by way of an e-mail dated 17th of November 2022 in which she reiterated that her decision was grounded in her finding that the claimant had been dishonest in his dealings with DI Attwell, a finding that she repeated a number of times while giving evidence before the tribunal.

[35]As he has before the tribunal, the claimant disputed that finding. In response, the Claimant reported in sick. He remained off sick until his resignation took effect. Initially, the claimants here in MS OC, DS and T with Andy Winters who gave evidence before the tribunal was assigned to be as welfare contact during his period of sickness absence, rather than his direct line manager, Detective Inspector Atwell, and the reason for that is stated by the respondent to be the breakdown of the relationship between the two. In due course, this change to DCI Blackburn, the claimant’s second line manager, and following DCI Blackburn being made aware ofy the claimant’s grievance, the claimant’s welfare contact changed to DI Ray Ascot who was based in CID.

[36]The respondent’s position with regards to the claimant’s general position that general CID was a place where there was seriously low morale amongst officers and that there was a discipline and lack of supervision is rife within CID. It is also the Respondent’s position that this position of the claimant is irrelevant to the claim. Also, it is not accepted that a move to general CID would change the claimant’s ability to honour his personal commitments outside of work and that in any event, all of these factors as raised by the claimant were considered as part of DCS White’s decision to move the claimant. General CID

[37]There is a dispute between the parties about general CID as set out above. The witnesses who were called to give evidence on behalf the respondent namely DCS White, Miss Mellor, Mrs Osborne, and Mr Blackburn all expressed views contrary to those expressed by the claimant. At paragraph 19 of his witness statement, and in response to the claimant’s allegation that the application of the M00 policy to the claimant was as a means of punishment, Mr Blackburn says “… I deem this to be quite disrespectful to those who work in general CID. And the claimant has also been the T/Detective Inspector in charge of the CID team in the past”. Miss Mellor says at paragraph 13 of her witness statement: “I do not agree with the allegation that general CID is”an environment of low morale, lack of discipline and supervision”. Under a huge amount of pressure due to demand and resource levels, which inevitably affects morale, but I would not say that there is particularly low morale in this team compare to other teams. We are all working in a pressured environment. In my experience leading the teams, I strongly disagree that there was a lack of discipline and supervision”. The claimant calls Mr Inquieti to address this point in his evidence was that he did not agree with what the claimant was saying pointing out that “CID is a hard place to work where morale can sometimes be low but not always”. The MOO Appeal

[38]On 9 January 2023, the claimant appealed the decision to move into CID in accordance with the respondent’s guidance on movement of officers. Claire Conie, deputy director of people and culture, chaired the appeal hearing on 10 February 2023. The meeting was held by Teams. She was supported by Colette Osborne, head of people delivery, and the claimant was represented by his Police Federation representative, Mr John McRae.

[39]Before this, the claimant had sent an email to Miss Osborne on 25 December 2022 seeking her advice and guidance in relation to his situation. He told Miss Osborne that he had to go sick with stress as he once again wronged and forced out of his role unnecessarily and potentially his career. But forcing to go sick as it was not an environment he felt he could go to for a six-month period for the period for reasons relating to his mental health, relying on the reasons he subsequently set out in his appeal. He described the move as a poison chalice. He went on to say that working shifts would have a massive impact on his family life.

[40]Ms Osborne undertook some enquiries as to the allegations that the claimant was making around general CID when compared to MSOC and formed the view that the claimed description was not a fair one to have reached. In particular, she did not agree that CID was less important than MSOC, formed the view that the location of Baker Street was not materially different to that of London South, and that in respect of the claimant’s concerns as to the impact on his family life, and as she points out in her witness statement, anybody within BTP is able to apply for flexible working and changes to working hours and as such these could be potentially made as a reasonable adjustment but subject to practicability and medical information/advice. In her witness statement at paragraph 7, Miss Osborne notes that DCS White in her email to the claimant on 17 November 2022 assured him that his welfare was important and that the department head, superintendent Sedgemore was aware of his situation of his situation and will work with him to ensure suitable flexible working arrangements are put in place.

[41]At this time, the claimant confirmed that he had been given enough information about this. Following an exchange of correspondence between the two, Miss Osborne confirmed to the claimant that there was a right of appeal in the movement of officers policy and attached a copy to the email response she sent to him on 22 December 2022. She indicated that if he wanted to appeal, he should do so by 9 January 2023. Thereafter there followed some further correspondence in relation to the claimant’s right to appeal which was Osborne describes as the “usual areas” and in this case specifically related to unfairness or procedural flaws in the process, any extenuating circumstances/new evidence which subsequently come to light and any detriment suffered due to the move. It is part of the claimant’s case that he sustained a delay in receiving information relating to his right to appeal and that as a consequence he suffered a detriment/disadvantage. In Miss Osborne’s view, she does not believe this to have been the case.

[42]There followed further correspondence on 11 January 2023 when the claimant Miss Osborne an email forwarding correspondence between him and DCS White and requesting an update with a timeframe and information about the format of the process would take. Ms Osborne replied on 16 January 2023 while at the same time informing the claimant that Claire Conie would be chairing his appeal supported by her. Claimant responded to that email asking further questions. Ms Osborne observes that the claimant did not make any mention of the need to see any documents early or raise any point about his health at that time. Subsequently, she sent a Teams meeting invitation to the claimant on 20 January 2023 with details of the appeal hearing scheduled to take place on 10 February 2023, attaching relevant documentation namely a brief chronology of events, an email from PSD confirming incident to be dealt with by local management dated 15 November 2022, email from DCS White confirming rationale for the move and attaching a copy of her review report dated 17 November 2022, email from the claimant contending appeals grounds dated 9 January 2023, a copy of DCS whites report emails between the two and the M00 policy. Claimant replied on the same day seeking clarification with regards to any investigation carried out prior to the hearing stated that in order that the respondent had come into possession before the meeting. He also flagged that he was likely to raise a grievance but acknowledge that this was not in relation to his appeal against the decision to move in.

[43]On 25 January 2023 the claimant sent further information to Ms Osbourne, namely an email dated 9 January 2023 sent to DCS White from Detective A’s wife which the claimant relied upon as supporting his view that he had been honest.

[44]Following an email from Mr McRae on 30 January 2023, Miss Osborne replied to him on 1 February 2023 to confirm that the claimant would have an opportunity to address the panel, arrangements for the hearing, and that Mr McRae will be provided with a copy of the bundle of documents by the end of the week. Mr McRae chased this on 6 February 2023. Later that day, MissOsborne provided a copy of that bundle.

[45]Later on that day, the claimant sent an email in which he provided comments on part of the bundle namely the sickness summary. It was also the first time that the claimant raised the concern that the material provided to him had been provided on short notice and the short time that remained for him to prepare between that day and the hearing was giving him more stress. He said that he would be preparing a grievance and that he would provide you with a copy. He indicated that he would be making an application to ACAS under the same grounds. Ms Osborne responded to say that the sickness case summary document was a summary and not a verbatim of the contact sheets rather a brief overview. She also reminded the claimant that his appeal was about the fairness and reasonableness of his move and suggested that any further, it should be raised at the appeal.

[46]The respondent, through Ms Osborne’s evidence both in writing and orally relies upon the summary of the chronology provided above to rebut the claimant’s allegation is short notice allegation. Specifically, that prior to 8 February 2023 the claimant had not suggested that he required the information served upon him by a particular date, that the movement of officers guidance does not specify a date by which information is to be provided, it denies that the information was disclosed late, and it further denies that the provision of information prejudice the claimant. It is also put by the respondent the claimant has failed to disclose any documentary evidence whatsoever to support his contention that it is within the nature of his disabilities that he has slow processing which underpins his allegation in relation to late disclosure of documents.

[47]Ms Conie wrote the claimant on 24 February 2023 to confirm that his appeal was unsuccessful and that the move decision was upheld. At the start of the hearing, Ms Conie informed the claimant that if he wanted to adjourn the meeting conversation with this federation representative any time he could do so. The claimant did not raise any concerns about when he received the bundle of documents at the hearing. He did raise some concerns about the timings of when some emails had been sent out by DCS White and when her decision had been made but not about the bundle of documents. After the appeal hearing, the claimant sent an email to Ms Conie and Ms Osborne thanking them for taking the time to listen to him.

[48]Within the outcome letter, Ms Conie accepted that the meeting with DCS White on 16 November 2022 was at short notice and came as a surprise to the claimant. Relevant policy makes it clear that the superintendent has the authority to act in the way she did with the support of the Commander, in this case DCS Furnell move on successor within an area with the support of the area commander who in this case was DC S Paul Furnell in this instance. That the decision to move the claimant was linked to any previous complaint or grievance that he had raised against the head of PST.

[49]In her witness statement, Ms Osborne states the following at paragraph 30, which he tribunal notes was not challenged by the claimant in crossexamination and is accepted by the tribunal : “Ms Conie set out information in relation to counselling and the support available to the claimant, should he wish to utilise it. My understanding is that these were never able to be progressed with the claimant because to be able to meaningfully discuss the potential stresses of the role, as would be required for a meaningful personal safety plan to be implemented and/amendments to be made to suit the claimant, these discussions could only take place when the claimant was ready to discuss a return to work”. The grievance

[50]the grievance was conducted by superintendent Andrew Morgan, subdivisional commander for the Wales sub-division of BTP. His evidence, most of which was unchallenged by the claimant, states that he was asked to chair the claimant’s grievance hearing on 2 March 2023, having had no prior involvement in the matter and no prior relationship with the claimant.

[51]Mr Morgan makes reference to the respondent’s relevant grievance policy. He chaired the grievance hearing on 13 March 2023 in accordance with the policy. He understood the claimant’s grievance to relate to what the claimant considered to be unfair treatment he had received that his temporary transfer should be stopped. Mr Morgan observes that the claimant stated that the move would damage itself further and that he would like to return to MSOC, claiming that the move to general CID put him at a disadvantage due to his disabilities given the environment and shift pattern within that team and that by moving him, the respondent had failed to make reasonable adjustments.

[52]In addition, the grievance identifies the claimant had raised concerns regarding the confidentiality of his occupational health referral and seeking suitably confidential counselling to be provided to him.

[53]The meeting went ahead on 13 March 2023 as planned. In advance of the meeting, Mr Morgan recalls receiving the initial grievance submission, and additional report from the claimant, along with the outcome letter from Ms Connie to the claimant which he read. The claimant attended the meeting unaccompanied. Mr Morgan was accompanied by Ms Bet Owens, people adviser.

[54]Mr Morgan adjourn the meeting to consider what he had heard and the evidence that they presented to him and to speak to other people where relevant. Enquiries are made as to the status of the claimant’s occupational health referral and Miss Owens received confirmation that the claimant had declined therapy sessions. The claimant sent to Mr Morgan a doctor’s letter which stated that the claimant was suffering from severe depression and PTSD. It stated that the claimant was on maximal therapy in primary care and that he was waiting for review with a psychiatrist and to start counselling. The doctors letter recommended that if possible for the claimant to see the force psychiatrist, and this should be facilitated as it may reduce his waiting time for an effective treatment. Miss Owens emailed the claimant on 14 March 2023 to address the concerns he had raised around confidentiality and occupational health and to confirm that the request for a psychiatrist appointment was in hand. The claimant had at that time and continues in evidence to assert that he is concerned that any sessions with OH would not be confidential and that all issues raised or discussed would be shared with his line managers stop Ms Owens and Mr Morgan advised him that confidentiality of matters discussed with OH would not be discussed with his line managers.

[55]The grievance outcome report was issued on 6/9 April 2023. That outcome addresses the claimant’s concerns with regards to OH confidentiality. It also addressed the claimant’s request to seek alternative and confidential sessions. Mr Morgan identifies that he was unable to progress the issues raised in the grievance about the movement of officer issue as it had been dealt with by the appeal. This means that he did not investigate the claimant’s contention that the move was proposed as a means of punishment. Similarly, he did not consider the extent to which reasonable adjustments were discussed or actioned.

[56]In fact, Mr Morgan was limited in terms of what he could report upon. He advised the claimant to continue to fully engage with counselling, both he and DI Attwell should meet to discuss regarding the events concerning detective a and four the OH assessments to take place.

[57]The respondent received notice of early conciliation on 8 February 2023 and issued their certificate by email on 3 March 2023. The Claimant issued his claim in the Tribunal on 3 April 2023. He also resigned on 23 September 2023. The Complaints – the law Discrimination arising from disability.

[58]By s 15 Equality Act 2010 (“EqA”):(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.

[59]In T-Systems Ltd v Lewis EAT 0042/15 the EAT said that the phrase “something arising in consequence of” the disability should be given its ordinary and natural meaning.

[60]“Unfavourably” is not defined in the EqA, but the concept is broadly analogous to the concepts of ‘disadvantage’ and ‘detriment’ found elsewhere EqA.

[61]As Langstaff J explained in Basildon and Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

, two separate causative steps need to be established for a claim to succeed under s 15:a. the disability had the consequence of “something”, and

b. the claimant was treated unfavourably because of that something.

[62]In Pnaiser v NHS England and anor

[2016] IRLR 170

and then again in Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

Simler J ( as she was then) approached the issue in the other order (which is, as was made clear in Weerasinghe, open to the Tribunal). In Sheikholeslami, her Ladyship said: On causation, the approach to S.15... is now well established... In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B’s disability?

[63]The first issue requires the tribunal to determine, what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment (it need not be the main or sole reason) then stage (i) is satisfied.

[64]The second issue is a question of objective fact based upon an assessment of the evidence.

[65]While a broad approach applies when considering stage (ii) there must still be a connection of some kind; the critical question is whether the ‘something’ arose “in ‘consequence of’ (rather than being caused by) the disability.

[66]The respondent in this case will have a defence if it can show either of the things set out in s(1)(b). Similarly, this claim will fail if the claimant does not establish that(1) the treatment was not unfavourable; or

(2) the treatment was sufficiently disconnected from the something; or

(3) in the event that the ‘something’ did not arise ‘in consequence’ (see above).

[67]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 (Gray v University of Portsmouth EAT 0242/20).

[68]Therefore, it will be necessary to consider whether the treatment was an appropriate and reasonably necessary way to achieve the legitimate aim, and whether something less discriminatory could have been done instead. Burden of proof

[69]Section 136 of the EqA makes provisions about the burden of proof. If there are facts from which the tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the tribunal must hold that there was a contravention, unless R proves that that there was not a contravention. Reasonable adjustments

[70]The requirements of the duty to make reasonable adjustments are set out in s 20 EqA and, by s 21, a failure to comply with the duty amounts to discrimination. For the purposes of this case, the duty applies where a “provision, criterion or practice” (“PCP”) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The disadvantage must be linked to the disability. The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage. “Substantial” means “more than minor or trivial” (s. 212 EqA). The knowledge defence is not relevant in this case. Findings Limitation

Findings

[71]As set out above, the claimant amended his claim to include a claim of constructive dismissal, that amendment being allowed on 14 March 2024. The respondent contends that his dismissal is, prima facie out of time on the basis that his employment ended on 29 September 2023. It is the tribunal’s finding that that is undoubtedly the case therefore the claimant is required to apply to extend time as foreshadowed by Judge Clark. The claimant does this in his submissions.

[72]In submissions, the claimant simply says that it would be just and equitable for the tribunal to extend time without providing reasons to substantiate his application here. It is said by the respondent that the claimant was represented at the time so at times during this claim and that it is not open to the claimant to rely on the fact that he was unrepresented at the time that the application was made which was also the case was presented to the to the tribunal. The tribunal’s view this is an inadequate explanation in that it fails to address the substantive failure to present the claim other than having not had the benefit of legal advice at material times.

[73]Therefore, and in the absence of a basis upon which to make an assessment as to whether or not it would be just and equitable for the tribunal to extend time to include remedy addressing dismissal, it is the tribunal’s finding that the claimant has not presented his claim of dismissal in time and therefore it is not open to the tribunal to extend time pursuant to section 123(1)(b) EqA 2010. Discrimination arising from disability

[74]The respondent admits that it had knowledge of disability at the material time.

[75]Here, the claimant relies on two aspects of the unfavourable treatment namely the decision of DS Sarah White instructing him on 16/17 November 2022 that he was to move to general CID for six months with immediate effect to undertake an interchangeable shift pattern and the general CID and further to the claimant’s request for such information on or around 8 January 2023 and the head of an appeal against movement hearing listed 10 February 2023.

[76]The respondent admits and the tribunal finds that DS white did instruct the claimant to move the general CID for a period of six months with effect from 21 November 2022. It is also accepted and therefore found by the tribunal that officers in general CID typically work an interchangeable shift pattern. However, the tribunal’s finding that the claimant was not instructed to undertake such a shift pattern. The tribunal makes this finding on a number of bases. First, the claimant did not put this allegation to Miss White in cross examination. That the claimant was instructed by Miss White that he would continue his existing roster and shift pattern for 28 days and that further, he should discuss his shift pattern with superintendent Nick Sedgemore who led the CID team. Accordingly, this allegation is not made out on the balance of probabilities. In other words, it fails to meet the test set out in section 136 EQA 2010 see above.

[77]As to the second limb of the allegation the respondent admits that the claimant was provided for the bundle whose appeal against movement hearing 2023 with an additional document on 8 February 2023. It is the tribunal’s finding that the movement of officers guidance does not prescribe a time by which paper should be provided ahead of the hearing and therefore the tribunal is unable to reach a finding that the material was provided late. Further, it is the tribunal’s finding that the vast majority of the material that was provided to the claimant was already in possession on the tribunal notes that when Ms Osborne was seeking to address this point in evidence yesterday the claimant became agitated and resistant to her providing evidence which he saw as being contrary or outside of the scope of the question that he had asked. In fact, it is a material point; it would appear that only one document was provided late to the claimant and that was a document which related to his own sickness history and therefore, it is difficult for the tribunal to find how that document could possibly amount to a matter of substance such as to substantiate the claimant’s allegation here. Again, this allegation is not made out on the balance of probabilities.

[78]Given the claimant’s failure to establish a factual basis to pursue it his claim because the tribunal does not agree that the matters he says that have arisen as a consequence of his disabilities have anything to do with his disabilities, the tribunal is not required to go any further. However, we will say as an aside that the two things he does rely upon were not made out in terms of the facts presented to the tribunal.

[79]First, the claimant’s position that he needs to honour personal commitments as a coping mechanism to alleviate the effects of his mental comes only from the claimant’s mouth and is wholly unsupported by any evidence whatsoever in the bundle. This allegation is based upon his contention that he would have to work shift patterns at a variance of those he worked whilst within MSOC. To the extent that had he transferred to CID continue to work his existing shift pattern for at least 28 days. No evidence has been presented to the tribunal that Mr Sedgemore would have gone behind the shift patterns worked. Therefore this allegation would have failed in any event.

[80]Second, the claimant has presented no evidence to the tribunal which could be independently verified that demonstrated that the claimant requires more time to process information and to focus. He makes this allegation in relation to the M00 appeal and it is noteworthy that the claimant at no time asked for additional time, a postponement of the appeal hearing or anything else which would have allowed him to process the single document that he was unfamiliar with in advance of the appeal hearing. Further, the claimant conduct post hearing is at a variance with someone who feels that they have been wronged as a consequence of an adverse appeal outcome arising from or in part the respondent’s failure to allow him more time to process information and to focus.

[81]Claimant says that the respondent should have accepted this about his disabilities at face value but it is the tribunal’s finding that this was an unrealistic proposition to make particularly in circumstances where the claimant had alleged against in matters of dishonesty.

[82]First, the tribunal does not find that the unfavourable treatment alleged by the claimant arose in consequence of his disabilities. The tribunal finds that the movement decision reached by DS white was as a result of her thorough and impeccable investigation into his conduct which itself arose from allegations detailed by DI Attwell. The tribunal finds that it was reasonable for DS white to form the view that she did about the claimant’s conduct in October 2022. It is also worth noting that although the respondent concluded that the claimant’s actions did not amount to a concern regarding operational dishonesty and thus did not meet the strict the threshold for misconduct, Mrs Kamal sound in the respondent’s professional standards department concluded that there could also be a suboptimal response which clearly needs addressing locally which is what DS white did. Failure to make reasonable adjustments

[83]In terms of knowledge, the respondent admits that the claimant was disabled.

[84]The respondent submits that the case of Ishola v transport for London

[2020] EWCA Civ 112

is application here. Specifically, the judgement of lady justice Simler (as she was then). It is the tribunal’s view that Ishola applies in this case: ‘37. 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. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.38. 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 or "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.

39. In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, 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 the element of repetition about it. In the Nottingham case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way. [emphasis added] 85. the respondent admits that it had the PCPs of applying the movement of officers guidance and the practice of requiring officers to undertake an interchangeable shift pattern.

[86]In respect of the movement of officers guidance, the tribunal does not find that it was applied as a means of punishment or otherwise in order to transfer the claimant to general CID. It was applied for the reasons given by DS white and found to be the case by the tribunal. Moreover, it is the tribunal’s finding that this allegation would not amount to a PCP when having regard to Ishola because this is not a policy which relates to a state of affairs and nor was any evidence presented to the tribunal which could demonstrate this. Rather, the M00 policy that goes to the root of all good employee relations policies namely the capability of an employee to appeal against the decision reached by their employer. It fall substantially short of a state of affairs of the kind identified in Ishola.

[87]The tribunal reaches the same finding on the applicability of Ishola the claimant’s allegation of an interchangeable shift pattern. In any event, the tribunal does not find that the claimant was subjected to an interchangeable shift pattern as a matter of fact given that he was told that once he resumed work he would be on the same work pattern for at least 28 days and perhaps longer. The claimant did not return to work.

[88]In relation to the PCP of requiring officers to work in an environment of low morale, lack of discipline and supervision, the tribunal finds that this allegation is not made out on the facts. The tribunal prefers the evidence of DCI Blackburn, DI Mellor, Mr Inquietti and Ms Osbourne who all said that the state of affairs purported by the claimant simply did not exist to the extent that he wishes to project to the tribunal. In fact, we go further and find that it was the claimant’s view that CID was a location that was beneath his standing. The tribunal accepts the respondent’s admission that the claimant’s belief in this regard was ill informed wrong on the basis that it was wholly misconceived.

[89]The next PCP is the claimant’s allegation that the respondent persistently provided the claimant with documentation and notice of hearings and meetings in late.

[90]This allegation arises from the claimant’s concern that he was provided late notice of the meeting with Miss White and Mr Blackburn on 16 November 2022, late written notice of his right to appeal the M00 decision of 22 December 2022, and that documents were provided to him late for his appeal of MOO decision.

[91]In respect of all three alleged PCPs, it is the tribunal’s finding that they are not PCPs at all.

[92]The first, which arises from the 16 November 22 meeting happened as a result of an operational decision, formed within the framing of the claimant’s conduct which emanated from allegations and concerns about him in the previous month, namely October 2022. It was an operational decision DS white following her investigation into the claimant’s conduct. It fails because the tribunal has formed the view that it is not Ishola compliant (see above).

[93]The second is where the claimant complains that he was only late in the day informed of his right to appeal against the M00 decision. It is the tribunal’s finding that the proposition that this of itself could amount to a PCP is plainly misconceived, first on the basis that there was no prescribed requirement to notify the claimant at all and second because the tribunal finds on the balance of probabilities that the claimant was not provided with the documentation late. The claimant’s contention that this amounts to a PCP is not made out on the basis that it is the tribunal’s view that the PCP that the claimant purports to rely on is not Ishola compliant.

[94]The third is in relation to the allegation that the claimant was provided with documentation late in relation to the 10 February 2023 appeal against MOO decision. Again, the Tribunal finds that this allegation is misconceived in the absence of a policy requirement to provide documentation within a particular timeframe and the tribunal’s finding that the documentation was not provided in late. The claimant’s contention that this amounts to a PCP is not made out on the basis that it is the tribunal’s view that the PCP that the claimant purports to rely on is not Ishola compliant.

[95]Turning to the allegation or PCP namely requiring employees to return to work before the need for adjustments had been assessed, this relates to the claimant’s contention that he was required to undertake an occupational health assessment before his return to work. As we are aware, the claimant never returned to work and therefore it is difficult to understand on what basis this allegation is proposed. In any event, it is the tribunal’s finding from the evidence presented to it that the claimant was invited to participate in an occupational health process but declined to do so. Furthermore, the tribunal was not taken to any evidence that demonstrated that the respondent did require the claimant to return to work before the need for adjustments had to be assessed. It is the tribunal’s finding that the respondent made significant attempts to assess the claimant’s need for adjustments, and this judgement refers to what occurred at the end towards the end of his employment during his grievance process.

[96]The tribunal is unable to identify the documents within the bundle setting out the policy which resembles that which forms this purported PCP. The respondent says that even if the claimant is seeking to make a general allegation, the claimant has not pointed to any evidence to establish it. In totality, the claimant has failed to establish that he was required to return to work before adjustments were assessed and failed to establish the tribunal satisfaction that this is capable of amounting to PCP. In other words, it is the tribunal’s finding that this allegation is not Ishola compliant. Substantial disadvantage

[97]In respect of the admitted PCP arising from the claimant’s move under the M00 policy, the tribunal accepts and agrees with the respondent’s admission that the claimant has not pointed to any medical evidence to the specific effect being moved from MSOC to an equivalent role in general CID because in materially more stress than his nondisabled peers. Again, this is allegation which comes solely from the claimant it being his point of view. It is our finding that this is not a reasonable basis to formulate this particular allegation. It is unrealistic for the claimant to expect either his former employer or the tribunal to accept his word as being determinative of this particular issue.

[98]The tribunal accepts the evidence of DS white that the change of role would have similar and therefore minimal. It is the tribunal’s finding that the claimant’s opposition to this move was based on his view that a move to CID was beneath him. The tribunal reaches it’s view on the basis DS white says in her witness statement as being what the claimant told her.

[99]In respect of the second admitted PCP namely in respect of interchangeable work patterns, the claimant refused to work in general CID for the remainder of his employment and therefore did not work in general CID. Further, he has failed to identify any independent medical evidence that working in an environment of low morale, lack of discipline and supervision placed him at a substantial disadvantage by reason of an increased risk of stress. Further, the claimant has failed to establish that CID was the place that he described it as. Additionally, the claimant had been assured that work patterns would not change and as stated above, there is no evidence to suggest that this would not have remained a continuing state of affairs for the six-month period that he was expected to be in CID.

Conclusion

[100]In light of the above, the claimant allegations of discrimination all fail. Accordingly, the claim is dismissed in its entirety