Mrs S M Goldsmith v The Commissioner of Police of the Metropolis: 2210515/2023
EMPLOYMENT TRIBUNALS
Case No 2210515/2023
Between
Mrs Suzanne Marie GoldsmithClaimantThe Commissioner of Police of the MetropolisRespondent
Before
Employment Judge WoodheadMs S Ismail (instructed by Counsel) for claimantDate 26 November 2024
JUDGMENT
[1]The following alleged complaints of victimisation under Section 27 of the Equality Act 2010 (the “EqA”) were dismissed on withdrawal before the start of the hearing:1.1 On 13 December 2022, Insp Vallance berating the Claimant in front of the office for being late on shift (para 35 GOC).1.2 On 14 February 2023, refusing the transfer request to MetDet (para 41 GOC).1.3 On or about 1 May 2023, Insp Vallance submitting the MM1 to PSD recording a sanction against the Claimant (paras 66-68 GOC).[2]The unanimous decision of the Tribunal is that: 1 of 1082.1 The Claimant’s other complaints of victimisation are not well-founded and are dismissed.2.2 The complaints of harassment related to sex are not well-founded and are dismissed.2.3 The complaints of harassment related to disability are not well-founded and are dismissed.2.4 The complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.2.5 The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.
REASONS
[3]The Claimant is a Police Officer serving in the Metropolitan Police Service (“the MET” or “the Force”). The Claimant was diagnosed with depression in 2005 and this is the disability on which she relies in her disability discrimination claims.[4]The Claimant brings complaints related to her period of engagement in the Respondent’s Resource and Demand Team (“RADT”). Her complaints relate to requests she made to leave the RADT team and:4.1 alleged failures to make reasonable adjustments and discrimination arising from her disability during her time in that team;4.2 victimisation that she claims to have suffered (because of a formal grievance that she raised on 24 November 2022 which she alleges was a protected act); and4.3 sex and disability harassment that she says that she suffered there.
THE HEARING
[5]At a preliminary hearing on 9 January 2024 the claim was listed for a hearing of six days on 18 – 25 July 2024.[6]The Respondent had to change counsel at short notice and the replacement counsel fell ill leading to a late postponement application on 17 July 2024 which was refused at the same time as 18 July 2024 being cancelled and 19 July 2024 being converted to a reading day to allow the Respondent to find alternative representation.[7]The Respondent repeated its application for a postponement at the start of the hearing on 19 July 2024. We rejected that application because the Respondent had restricted its search for counsel to its panel within London but had 2 of 108 nonetheless found Ms R Tuck KC who could prepare the case over the weekend. We considered that it was in the interests of justice to proceed with the hearing notwithstanding that the Respondent would incur the additional expense of more experienced counsel that it would have instructed. We considered this in the interests of justice given:7.1 the self imposed limits the Respondent had placed on its search for alternative counsel;7.2 that the case had been listed to be heard via CVP;7.3 that the claim could not be relisted until April 2025 at the earliest; and7.4 that the Claimant remains in the Respondent’s employment on maternity leave.[8]We were able to add 26 July 2024 to the trial window and agreed not to start evidence until the afternoon of 22 July 2024 (to allow Ms Tuck time to take instructions from the Respondent and speak to the Respondent’s witnesses). We were open to hearing from the parties as to whether it would be appropriate to switch the normal order of evidence but the Respondent was content to proceed with the Claimant’s evidence going first.[9]On Friday 19 July 2024 we made it clear that we might not be able to reconvene to deliberate as a panel until November 2024 due to diary commitments. We said that full written submissions would therefore be helpful. It was confirmed to us that this was communicated to Counsel for the Respondent instructed later that day. We made clear that we considered it preferrable to hear the case in this trial window, even if a decision was delayed until November, rather than postpone it to April 2025 or later.[10]At the same time as the Respondent renewed its application for postponement of the hearing on the morning of 19 July 2022, the Claimant withdrew elements of the claim which we dismissed on withdrawal.[11]We spoke with the parties at 10am on 22 July 2024 and agreed a provisional timetable which we checked as the hearing progressed.[12]We were provided with:12.1 A bundle of 586 pages (this was supplemented with additional documents during the hearing on two occasions taking it to 635 pages)12.2 Witness Statements as follows12.2.1 The Claimant – 56 pages (“CWS[]”). The Claimant appeared to have intended to refer to additional pages in the bundle but Counsel for the Claimant did not propose to give us the intended page references and said that all relevant pages were included in the Chronology.12.2.2 Inspector K Vallance (the Claimant’s line manager) – 25 pages (“KVWS[]”) 3 of 10812.2.3 Chief Inspector M Hahmood– 7 pages (“MHS[]”)12.2.4 Inspector V Haver – 6 pages (“VHWS[]”)12.3 A statement of PC A Johnson (who did not intend to give evidence at the hearing but was a witness for the Claimant). This statement related principally to one of the withdrawn complaints. The Claimant asked us nonetheless to take the statement as supporting the Claimant’s assertion that Inspector Vallance’s denial of the allegation that she had berated the Claimant in front of the other officers on shift on 13 December 2022, was untrue.12.4 An agreed chronology, cast list and schedule of acronyms.12.5 A set of additional disclosure from the Claimant which we added to the bundle as pages 587-635.[13]We made clear that anyone participating in the hearing could ask for breaks and the Claimant asked for time to feed her baby which we of course accommodated.[14]On the afternoon of 22 July 2024 we heard the Claimant’s evidence until just after 17:00.[15]On 23 July 2024 we continued to hear cross examination of the Claimant until after 5pm. There was insufficient time for Tribunal questions or the 30 minutes of re-examination anticipated. On the morning of 23 July 2024 the Respondent sought to add to its justification defence in respect of the arising from disability claim (a justification for one limb of the claim not having been recorded in the LOI when the justification defence was added to the LOI on Friday 19 July 2024). The Claimant’s representative said she needed to take instructions on that after the Claimant was released from her oath and suggested that the position might be that the Respondent would need to apply to amend. In the event the Claimant took no issue with this and we considered it in the interests of justice to allow the Respondent to rely on its justification defences.[16]On 24 July 2024 we heard re-examination of the Claimant and then heard the evidence of Inspector Vallance.[17]On 25 July 2024 we concluded Inspector Vallance’s evidence and heard the evidence of Chief Inspector Mahmood and Inspector Haver.[18]Counsel for the Claimant had a hearing on a different matter on the morning of 26 July 2024 (this day having been added the to this trial window with the agreement of the parties on Friday 19 July 2024). Counsel agreed to exchange full written submissions around 9:30 on the morning of Friday 26 July 2024 and to then attend to speak to those submissions at 14:30 and deal with any Tribunal questions. The hearing concluded that afternoon. FINDINGS OF FACT, ANALYSIS AND CONCLUSIONS[19]Having considered all the evidence, we find the following facts on a balance of 4 of 108 probabilities.[20]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues.[21]The parties will note that we have structured our findings of fact around particular themes or topics. This means that the findings of fact do not follow a pure chronology but we nonetheless found it more helpful to set out findings out in this way.[22]We were also careful to look at the evidence ‘in the round’ to determine whether it suggested that the Claimant had been subjected to the unlawful treatment of which she complains (this is particularly important when it comes to allegations of victimisation and harassment). Having done so we did not find cause to change our decisions on any issue or issues. Acronyms and abbreviations[23]A large number of acronyms/abbreviations were used in the evidence in this claim and we were provided with the helpful summary of them as follows and which we have supplemented as set out below. For confidentiality reasons we have also set out below our code for referring to other officers who were named to us: 728 is a transfer request form used by an Officer to request a transfer to another unit. EA means East Area BCU BCU means Basic command unit CARMS means computer aided resource management system (on which holiday is recorded) EA400 or 400 means Inspector in charge of operations for East Area BCU. [180] The 400 will triage missing persons based on the initial information provided, and assess whether it is low, medium or high risk, and will determine whether more information is needed. The missing person is then delegated to the RADT Sgt. ELS means Emergency life saving ERT/ERPT means Emergency Response (Patrol/Police) Team GMT means Grievance Management Team JRFT means Job-related fitness test LRPM means Local Resource Planning Meeting ‘Misper’ means Missing person 5 of 108 MIST means My Investigation Support Team. This team deals with missing persons cases after the first 48 hours (which is handled by RADT). In MIST the Sergeant has a work file that they have to manage. MM1 means Misconduct form Met Det / MO9 means Met Detentions. This is the operational command unit within the Respondent that is in charge of custody facilities [229, 238, 246, 275, 509]. It falls outside the EA BCU. The Claimant could not transfer here due to the two year BCU tenure rule. Insp Vallance at the time of the hearing had moved from EA BCU to MO9. NPPF means National Police Promotion Framework Officer A – means the person referred to at paragraph 5 of Insp Haver’s witness statement. Officer B – means the person referred to at paragraph 6 of Insp Haver’s witness statement. OMPD – means outside the metropolitan police district OSE - means Operational Support and Events PDR means Professional development review PPST/OST means Public and personal safety training RPRP means reflective practices review process RRRD means Re-rostered rest day RADT means Resource and Demand Team (this deals with the first 48 hours after a person is reported missing and the case is then handed over to MIST) Skipper’ means Sergeant SOP means Standard operating procedure SSCL means Shared Services Connected Ltd – Respondent’s outsourced HR WBA means Work-based assessment Background and the start of Claimant’s career[24]The Claimant is diagnosed with clinical depression. She was first diagnosed with the condition in 2005. The Respondent concedes that it is a mental impairment that is long term and substantial, and has an adverse effect on the Claimant’s 6 of 108 ability to carry out normal day to day activities and should be deemed a disability within the meaning of s.6 Equality Act 2010.[25]The Claimant began her service with the MET, initially as a Special Constable in 2011, joining as a regular Police Constable on 16 September 2013. The Claimant had a break in service between 2016 to 2019, to raise a family.[26]The Claimant returned to the MET on 8 July 2019 as a full time Response Officer in the Emergency Response (Patrol/Police) Team (“ERPT”). The Claimant continues to serve the Force.[27]The Claimant currently holds the rank of Police Sergeant, having been promoted on 31 January 2022. Promotion and probation Work based assessment on promotion[28]Police officers can seek promotion to higher ranks by completing the necessary exams, known as ‘boards’, to achieve the status of ‘newly promoted’ in a particular rank. This does not involve the officer applying for any particular role at the promoted rank, but rather is an objective assessment of the officer being sufficiently qualified to move up to the rank.[29]Once newly promoted status is achieved the officer does not automatically begin working at the higher rank. The officer continues in their current position until they are ‘posted’ into the next available, suitable, position at the higher rank.[30]Once posted into a higher rank, the officer will then need to complete further training and competencies ‘on the job’. The officer needs to complete a WBA in order to be confirmed in their new ‘substantive’ higher rank by their assessor. Promotion to Inspector[31]After the Claimant had completed her WBA and had been confirmed in her substantive role as a Sergeant, the next step would have been for her to apply for promotion to Inspector. In order to achieve this she would have had to meet the criteria under the National Police Promotion Framework including the following [474-475]: Step one – competence in current rank. Step two – legal knowledge examination. Step three – assessment against rank specific competencies and matching to vacancies. Step four – temporary promotion and work-based assessment[32]The following further eligibility criteria would also have to be met [475-477]: 7 of 108 Eligibility To be eligible to enter the NPPF step two legal examination to the rank of sergeant or inspector, officers must meet the eligibility criteria for the NPPF step one. NPPF step one confirms that candidates have: - demonstrated competence in their current rank through their professional development review (PDR), their student officer learning and assessment portfolio (SOLAP) or an acceptable equivalent - no live written improvement notices issued under the Police (Performance) Regulations 2020 and - no reduction in rank under those procedures in the previous 12 months, beginning with the date of the notice - no live written warning, final written warning or extended final written warning issued under the Police (Conduct) Regulations 2020 - adhered to the attendance management policy, taking full account of the Police Advisory Board guidance on attendance management - met the specific eligibility criteria for that exam as detailed in the following [….] Inspectors’ specific eligibility criteria OSPRE parts I and II qualified sergeants OSPRE parts I and II qualified sergeants are eligible to apply for the Inspectors’ NPPF step two legal examination from the commencement (day one) of their sergeant posting, provided that they have not previously obtained a pass in a recognised police promotion examination (for example, hey are not already an OSPRE parts I and II qualified inspector). All officers (OSPRE and NPPF qualified) are required to complete a minimum of two years as a substantive sergeant before they can be substantively promoted to inspector under Regulation 5 of the Police (Promotion) Regulations 1996 (as amended). OSPRE qualified officers are required to complete a probationary period of one year (or longer) in the role of sergeant as part of their mandatory two years as a substantive sergeant before they can be substantively promoted to inspector. However, any candidate who holds the substantive rank of sergeant is immediately eligible to commence step one of the NPPF process and take the NPPF step two legal examination during this probationary 8 of 108 period. OSPRE qualified sergeants are therefore entitled to take the NPPF step two legal examination for promotion to inspector at any time following promotion to sergeant because they are a substantive sergeant from day one. NPPF qualified sergeants NPPF qualified sergeants are eligible to take the inspectors’ NPPF step two legal examination for promotion to the rank of inspector once they have successfully completed the NPPF route and been made substantive as a sergeant. Step four of the sergeants’ NPPF process is a mandatory 12 months, which cannot be reduced in any circumstances. Officers cannot be substantive as a sergeant until the full 12 months has been completed and are not eligible to take the exam before they are substantive in rank. Only candidates who hold the rank of sergeant are eligible to take the inspectors’ NPPF step two legal examination. Candidates nearing completion of their temporary promotion to sergeant may only register for the examination if they are supported by their force and will have achieved substantive rank by the date of the NPPF step two legal examination. Candidates and forces must ensure that candidates have met these criteria. Officers who apply early but are not substantive in the rank of sergeant at the time of the exam are not permitted to take the examination.[…] Sickness and Attendance Management as regards promotion[33]The Respondent’s attendance management selection criteria which are taken into account before an officer is allowed to apply for promotion provide [540-541]: In making some business decisions, for example, about promotion and selection, we need to be confident that people have a consistently high level of attendance to be able to demonstrate their performance. The attendance management selection criteria (AMSC) is the tool we use to ensure that we are being fair and consistent when making these decisions. The AMSC is the same standard as that used to define unsatisfactory attendance. When applying for promotion or selection you will be expected to meet the attendance management selection criteria. Your line manager will need to provide a response regarding your absence history which will affect the progression of your promotion or selection. Your three year sickness record will be assessed. You do not meet the criteria if: you have four or more absences in a rolling 12 month period 9 of 108 you have 11 or more days absence in a rolling 12 month period There is discretion for your line manager to discount certain absences during this assessment, (some examples are given below): you have had an exemplary attendance record aside from a one off illness/injury where your sickness absence (or a significant proportion of it) is disability related, your line manager will be asked whether, or not, this absence has had a significant detrimental effect on your performance. Your line manager can contact HR Case Management for advice (who may recommend that a referral is made to OH) prior to answering this question pregnancy related absence falling within the protected period (always excluded)[34]We were also taken to the wording of Form 456 [587] which provides (amongst other things): Line manager to recommend either action A or B or C RECOMMENDATION A: Sickness record meets the attendance criteria and application is recommended. […] RECOMMENDATION B: I consider that the application meets the criteria but requires further explanation, as shown below. (See para. 7 overleaf) […] RECOMMENDATION C: Application rejected because sickness record does not meet the attendance criteria. […] SUMMARY OF ATTENDANCE CRITERIA PROVISIONS See Section 6, Attendance Management Standard Operating Procedure and the Attendance Management Toolkit - Attendance Management Selection Criteria - Q&As for more detailed information 1. The Met attendance management policy requires that applications will normally be rejected where an individual has been absent from duty through sickness over the previous three years: ● for an average of more than 6 days per year or ● where the individual has been absent from duty on eleven or more separate occasions during those three years 10 of 108 or ● when the individual’s sickness record during the period displays a pattern of absence which would cause the line manager to feel unable to rely on a regular pattern of attendance or performance. 2. Absences due to minor illnesses such as colds, sore throats, upset stomach etc. will not be discounted and will be taken into account when considering an individual’s absence record, as long as they have no underlying cause even when the absence lasts only one day. Special consideration should be applied to applications by catering staff as food hygiene regulations stipulate that catering staff may not attend work when suffering with the above symptoms. 3. The previous three years will be calculated from the closing date for applications for the relevant selection process, or from the date of the application in all other cases. Where an individual does not have three years service the criteria, set out above, should be reduced proportionately according to the period of their service. 4. In all cases the first line manager should: ● check the sickness record with the criteria and decide whether it meets the criteria and should be forwarded ● complete section A, B or C as appropriate. 5. Where an absence derives from or is directly related to a disability (as defined under the Equality Act 2010) or pregnancy related sickness or an injury in the execution of duty, line managers must obtain advice from HR Case Management when considering whether an individual falls within the criteria. 6. Absences relating to an illness or injury or to ongoing treatment for such an illness or injury may also be excluded, although full reasons should be given when completing the selection criteria form. 7. Where the decision is made to forward an application which falls within the criteria (Recommendation B), the reasons must be fully recorded by the line manager. […][35]We note here that the Claimant misunderstood these requirements and in cross examination maintained a position which was not sustainable with respect to her interpretation of the attendance management selection criteria. She said that she would be eligible for promotion regardless of the number of days of absence providing she had fewer than 11 periods of absence. She maintained that if an officer was below one of the attendance thresholds then they could be considered for promotion. 11 of 108[36]However, it is clear that the three elements can each individually bar an officer from promotion. They are not gates through which an officer can pass, they are three standards which must all be met and below which an officer cannot fall. We accept Inspector Vallance’s explanation that previously the Respondent used to ask for a Form 456 to be completed and as long as the recommendation was A or B the Respondent would allow the progress of the application. We accept that this refers to A or B on form 456 where the line manager is told to complete A, or B or C, where C is a rejection, A is complying with the attendance criteria and B is compliance subject to an explanation. Other policies[37]The Respondent has a number of other policies relevant to the issues in this claim. BCU tenure[38]We accept Inspector Vallance’s evidence [KVWS7-8] that all BCUs have a tenure policy which means that when an officer transfers onto them, whether voluntarily or on promotion, they need to remain on the BCU for two years. The aim of this policy is to provide stability in the resourcing of the BCU and to ensure that officers gain the necessary skills to become competent. The policy as provided to us was set out as part of a frequently asked questions document and provides [467]: Is there a tenure attached to any post taken as a promoting sergeant, or only for some positions? There is a 2-year tenure attached to sergeant and inspector promotions, so the default is no, officers aren't eligible to be posted to other roles in this period. That said, if the OCU they are posted to supports them moving on in this period {they will have others in this situation so they often assess for fairness across the board), then they can be posted on. Often officers start applying for roles around the 18/22 month point of their 21 months and then are posted to start after the 2-year point.[39]We accept Inspector Vallance’s evidence [KVWS7-8 and 166] that there is also a RADT tenure policy of one year, subject to the MET’s needs to transfer an officer out sooner. Unsatisfactory attendance[40]The Respondent’s sickness absence management policy [527 onwards] provides, amongst other things: At the Met, we want to support our people so that they are well enough to be in work and delivering their best for the public we serve. 12 of 108 We understand that sometimes illness means it is not possible to be in work and individuals may need to be absent to recover. Line managers will support people in their teams who are absent, communicating with them to understand whether there is anything they can do reasonably to help someone return to work. If absence reaches unsatisfactory levels, managers will need to take appropriate action. We have processes in place to make sure that when action is taken, it is done fairly and consistently. At every stage, we will be communicating with the absent individual to offer support and guidance. Each case is dealt with on its own merits. The support individuals need will be unique to them and we recognise that. All of our processes are underpinned by the Equality Act 2010 to make sure they are fair and to make sure we carry out our obligations. This guidance includes information both for individuals suffering from ill health, and also for line managers looking to provide support to someone who is ill. There are different processes for dealing with unsatisfactory attendance according to the circumstances that apply, see the below subjects for further detail: Probation Unsatisfactory Attendance & Performance […] Your manager has to consider whether your attendance is at a satisfactory level, given the circumstances of your individual case. They may need to take management action if your absence reaches the levels shown in the table ‘definition of unsatisfactory attendance’. When considering the circumstances your manager may think it reasonable, for example in the case of a disability related absence, to use discretion and not issue an action or warning at that particular trigger point. If so, they will inform you of this. Please note that the following unsatisfactory attendance advice is not relevant for officer or staff in their probation period. Definition of unsatisfactory attendance Type of absence Definition of Informal Action Moving to next Dismissal problem unsatisfactory (IA) must have stage in recommendation attendance been considered UPP/unsatisfact should have by: ory attendance been considered process must by: have been 13 of 108 considered by: Frequent short 3 absences in a 4th absence in Each subsequent Each subsequent term absence rolling 12 month rolling 12 month absence. absence period. period Individual should be warned that at the next absence Informal Action (IA) Officers or Informal Management Action (IMA) Staff will be considered Long term 29 days 2 months At 3 monthly By the end of 11th absence intervals month of absence Total absence 10 days in a 15 days in a Each subsequent rolling 12 month rolling 12 month absence, or as period. Individual period appropriate to the should be warned circumstances of that at the next the case absence IA will be considered Covid policy[41]Until 1 June 2022 the Respondent applied the following policy in respect of absence due to COVID [612]: […] Colleagues who test positive for COVID-19 or are suffering symptoms Colleagues who test positive for COVID-19 or who are suffering from COVID-19 symptoms should not come to work. They should report sick via MyHR selecting ‘COVID-19 (confirmed diagnosis)’ from the reason drop down menu. Colleagues who are suffering from COVID-19 symptoms should not come to work, but make reasonable efforts to take a lateral flow test. They should stay away from work until they no longer have symptoms. They should report sick using MyHR selecting ‘Coronavirus type symptoms (not confirmed covid-19)’ from the reason drop down menu. […] You should update CARM 14 of 108 People can self-certify for 7 days, from day 8 a fit note will be required, this is line with government guidance. On 1 June 2022, the Met reverted to its pre-COVID stance. Any absence – no matter what length - will be dealt with on a case by case basis under our attendance management selection criteria. For further information Line Managers should read the attendance management selection criteria.[42]Prior to 1 June 2022 COVID absence had been exempted from consideration under the attendance management policy. Recuperative/restricted/adjusted duties[43]A Home Office policy applicable to all police services provides the following guidance on attendance management [510, 519]: SCOPE 7. This guidance covers an attendance management policy as it relates to police officers, including Special Constables. […]. […] Recuperative duties 38.34. A phased return to work using recuperative duty arrangements can aid an early return to work. Recuperative duties should be used when there is the expectation that an officer will return to full duties upon his or her recovery. They are appropriate as a time-limited measure based on individual circumstances to enable officers to re-integrate into the workforce following a period of sick leave or injury. Any change to tasks should be temporary and a measured increase to return to normal hours and tasks should be actively managed and achieved in the shortest possible time. Restricted duties 39.35. Where the condition is likely to be permanent, a return to work on the basis of restricted duties should be considered. Restricted duties are used in order to retain the skills and expertise of police officers and prevent unnecessary and costly early retirement. Police officers who are performing restricted duties are working full hours, as the restriction is predominantly based upon the type of work an officer can perform rather than the hours worked. This work should utilise their police skills and experience.[44]However, within the Respondent, the term “restricted duties” is also used for officers facing misconduct charges. The Respondent’s Recuperative Duties Managers Guide, on the same topic provides [625]: 15 of 108 Recuperative Duties Definition Recuperative duties refers to a short term temporary work period that is allocated to individuals that cannot complete the normal duties undertaken as part of their role or if they are falling short of full deployment following an injury, accident, illness or medical incident. The temporary work period allows individuals to maximise their deployment at their current capability whilst enabling them to recover and return to full duties. If an individual becomes sick during recuperative duties, as the line manager you are required to close down their recuperative duty record on PSOP and ensure that they report sick. Please use the Recuperative Duties Request for Service to do this. Recuperative Duties Process Assessments for fitness for duty are carried out by Occupational Health (OH) in the first instance. Upon referral from you, the line manager and after the initial assessment process, they will advise on any workplace adjustments that are needed, and manage the individuals return to full duties. Typically, recuperative duties would not exceed 6 months, but in exceptional circumstances, the recuperation period can be extended up to 12 months. In this period, the individual prepares to return to full duties and their full contracted hours. Recuperative duties can only be authorised by OH. Reviews between the individual and you, their line manager must be held if the individual is still on recuperative duties after 12, 18 and 24 weeks. You as the line manager has primary responsibility of determining whether the recommended recuperative duty plan from OH can be reasonably accommodated. In instances where the recommendations are not practical, and do not allow business need to be met, you should contact the HR Case Management Team for advice on next steps. You may find this process map useful to guide you through the recuperative duties process.[45]We were provided with a MET HR “Adjusted Duties: What you need to know – Police Officer” document which provides [626]: Adjusted Duties Definition Adjusted duties are long term work adjustments that are implemented for you if you are unable to complete normal duties in the workplace. Longer term adjustments are made to overcome your barriers at work. There is 16 of 108 an understanding that if you are on adjusted duties may need long term or permanent reasonable workplace adjustments. If you are on adjusted duties you must be working on a regular basis and be working the full number of hours for which you are paid. Adjusted duties shows an intention to keep you in employment at the Met in a meaningful policing role. Sickness absence June to November 2021[46]In February 2021 the Claimant was accepted onto the Fast Track Constable to Inspector programme and passed her Sergeant’s exam and board. However, she became ill and was absent from work with depression between June and November 2021 a period of approximately 142 days. In November 2021 the Claimant withdrew from Fast Track programme.[47]The Claimant was initially offered a posting as Sergeant in the ERPT to the North East Borough in October 2021, but was not well enough to return to work at that time.[48]The Claimant returned to work on 14 November 2021, initially on a phased basis as a Police Constable. She then joined the newly created Resource and Demand Team (“RADT”) on 17 January 2022.[49]RADT is a team that does not require officers to be fully operational due to the office-based, non-confrontational, nature of the work undertaken there. RADT is part of East Area BCU. BCU means ‘Borough Command Unit’. East Area is a tri-borough BCU (comprising the boroughs of Barking & Dagenham, Havering and Ilford). East Area is often shortened to ‘EA’. RADT deals with:49.1 missing persons (reports under 48 hours old) across the three Boroughs;49.2 high risk missing persons;49.3 all Computer Aided Dispatch (CAD) calls;49.4 input of crime and intelligence reports;49.5 out of Force notifications.[50]RADT became officially operational on 25 January 2022[51]On joining RADT the Claimant was not fully operational (as we explain more fully in this judgment). She was at the rank of Sergeant in the RADT team but, in common with normal practice, was on probation in her new rank because she was newly promoted to that rank. She has since gained the substantive rank of Sergeant.[52]The Claimant’s return to work was the first time that she had been in a Sergeant’s role (having been promoted on 31 January 2022). She still needed to do her WBA and to be confirmed substantively in the role by her assessor.[53]The Claimant was on recuperative duties when she returned to work on 15 17 of 108 November 2021 and remained so until 15 July 2022 when she went onto adjusted duties [130/ 133 /143].[54]Initially the Claimant reported to Inspector Archer who was looking after the RADT team between Inspector C Weedon leaving and Inspector K Vallance taking over the team in the summer of 2022. Chief Inspector T Smith was Inspector Weedon and Inspector Vallance’s line manager. RADT[55]On 25 February 2022 the Claimant emailed CI Andrew Sanderson asking to move out of RADT to ERPT [122-124]. CI Sanderson let the Claimant know that he was not the person that the request should be made to and so the Claimant sent the request on to CI Smith on 2 March 2022 saying: […]To give you a brief background, I was off sick with depression from June- November, I returned on phased return as a PC. I then went back to full time hours when I joined RADT in January as a Substantive Sergeant. The role has been extremely busy with no let-up due to being a loan sergeant and is not an environment which is helpful to my recovery. I have had a OH review this week and it states that my current role is making my mental health deteriorate and due to that reason I just think it is not right that I should be made to continue in it, as I have a genuine welfare reason to be moved. I really feel I would be much better off on response team, due to the following reasons There are more Sergeants and an Inspector on hand for support/ to communicate with There is more variety in the role as swap between EA 6 and EA7 for example The role isn’t constant heavy admin There is less risk to be managed Utilising the radio etc. There is opportunity to go out and about There is opportunity to do AID There is more interaction with people and team There are opportunities for me to build on my confidence There are opportunities to gain evidence for WBA As opposed to RADT where 18 of 108 I am a loan sergeant with little support in my role The risk of every EA Misper sits with me, which is a lot of risk working in a heavy admin role in a very quiet office, Pcs who are very unmotivated, depressed, (some have been suicidal) and with complex welfare needs themselves and having little time to do HR tasks to support them dealing with constant risk with no down time no opportunities to leave the office as we are ring-fenced from aid I do not enjoy the role as it is monotonous, but still needs great attention to detail The attention to detail required takes a lot out of me, as it is constant involved report reading I rarely get breaks from my computer My confidence is not increasing, as I am not being challenged at all so I feel it is decreasing the demands of the role are too much for all of the supervisors working in RADT due to use being short staffed, let alone myself who is recovering from depression. Limited opportunities to gain evidence for my WBA I feel like I am being deskilled, as I am only dealing with one thing over and over I am sure you are aware, there have been many issues raised by the RADT Sergeants collectively since RADT started due to lack of staff and supervisors, not just by myself. As such, I would be very grateful if my welfare could please be prioritised and for me to be sent back to LRPM to see if there are any team vacancies I could be transferred to as soon as possible. I believe the new influx of Sergeants coming through have mainly all been posted to response team, so I understand there are vacancies available. I am very capable of handling the demands of a Sergeants role, however this particular role is just not conducive my individual circumstances. Any assistance would be greatly appreciated, I have discussed my concerns with Ma’am Weeden who has kindly attempted to put measures in place such as meeting with me bi-weekly, however I really feel a change of role is the only thing that will be beneficial to me.[56]The same day CI Tom Smith refused the Claimant’s request saying: 19 of 108 Firstly I am sorry to hear of your circumstances, and as someone who was off Ops for a period of time last year, I am extremely empathetic to anyone in a similar situation. Please make sure Carroll has sight of your most recent OH report so that adjustments can be made. My understanding is, and correct me if I am wrong, that you are currently not in date for OST / ELS? This would preclude you at this time from ERPT, as I require all the Sgts, to be operational and deployable to manage critical incidents, and to intrusively supervise the PCs. The only exception to this could be a Sgt who is injured whilst already posted to ERPT, recoup for a very short period of time, and with a fairly immediate anticipated return to full Ops. They could not have expired in OST / ELS. I appreciate that you may feel aggrieved by this stance I have taken, but I treat everyone fairly and assess everything on its own merits. I am happy to talk this through with you, if you wish. Once you have undertaken the JRFT, and are in date with OST and ELS, I will absolutely not stand in your way. If you feel this is too long to wait, , you can of course look for recoup jobs once your WBA is complete. The work that you do is vitally important, and I want people to see the value they bring to the organisation, it concerns me that you don’t feel valued. You are, and I thank you for everything that you do. I am undertaking a review of the RADT this week and next, and I take your observations seriously. Once I have a clear sense of the issues you raise I will respond to you personally, and am happy to do this face to face. Carroll has reassured me that your WBA is achievable in this role, and that she will support you with the OH and HR demands placed upon you. If you genuinely feel this is not the case I again will meet with you to talk through your concerns. I am sorry that this may not be the answer that you wanted, but I do want you to recognise the importance of your current role and that I commit to supporting you into a role in ERPT, once you are operationally deployable.[57]As we will explain more fully in our analysis and conclusions, we consider that this was a reasonable response given the risks and requirements of those deployed to the ERPT. The Claimant replied positively saying that she intended to get her JRFT and OST/PPST completed as soon as possible and CI Smith then offered his support to the Claimant [121]. We note here that no mention was made of any tenure requirements but conclude that this was because the primary barrier at this stage was the fact that the Claimant did not have her JRFT, OST/PPST and ELS. July 2022 telephone call with CI Smith[58]On 27 July 2022 the Claimant had a telephone call with CI Smith. Another 20 of 108 officer was about to be moved from RADT to ERPT and the Claimant’s evidence was that in that conversation she told CI Smith that she was working towards completing defensive PPST. The Claimant’s evidence was that in the call CI Smith:58.1 did not indicate that defensive PPST would be insufficient to move to ERPT;58.2 did not mention tenure in RADT being an impediment to a move to ERPT;58.3 said that the Claimant would be the next cab off the rank.[59]The next day the Claimant sent the following email to CI Smith [142]: Further to our conversation before you were on leave, I have now been made adjusted duties rather than recoup which will allow me to defensive PPST and ELS as soon as PSOP reopens, therefore I attach my 728 for your perusal.[60]The 728 form said [461]: RADT Posting I know we have spoken about this on the phone, so I am sending a 728 as follow up. I have been on RADT since January 2022 and previously requested a move from this post as you are aware, but was restricted at the time and this was rejected. I am now ‘adjusted duties’ rather than recoup and as such as soon as PSOP reopens I can book on a defensive PPST course and ELS which will allow me to go out as a Supervisor on ERPT, negating the need for me to be in an indoors posting. I have been made aware today that I am the only Sergeant out of the original Sergeant’s posted here that hasn’t been moved, or authorised to move. Can I please request that I am considered for any vacancies on response team A or C at either Freshwharf of Jack Brown House please, as my husband is on B team at KW these are the only teams I can work on for childcare reasons as I have a five year old daughter. I cannot complete all of my WBA on RADT and I feel that after six months on here I am not developing at all, as every single day is the same and I do not feel that I should be held back due to my disability of currently suffering with depression, when I can now complete PPST which will allow me to go out. The goal is obviously still to get back to full fitness which I have my sights on, but I have to recover from depression first to enable me to do that and being in a role that find soul destroying is not helpful to that. I have worked very hard since being posted to RADT, there have been no issues with my risk reviews or work ethic, I have run my team without any issues. As there is no tenure in place to keep me on RADT I would be grateful if I could be given the opportunity to develop as a Sergeant on ERPT.[61]CI Smith replied the same day to say [143] (and we understand that his reference to EA is to East Area BCU): 21 of 108 Firstly it is great that you are getting closer to getting your OST and ELS back, typical about PSOP!! This I definitely one of those situations ( we discussed yesterday) where I will pass the concern around WBA back to Kate. When I wrote to you in March I specifically asked Carroll to ensure you had time to do this in. Maybe because you’ve been off, or another reasons, but I share your frustration that this hasn’t happened. In any case, we are where we are, and Kate will absolutely be able to give you time to do this, perhaps one for your 1-2-1. We can easily get the OsE to cover you for an Op etc Re the wider ask, I know [Name] is chomping at the bit to get onto team and I know [Name] has longer term plans. The general rule on EA is a years posting on promotion. I wasn’t here when you were posted, and so if this is news, I do apologise. That said, if an opportunity comes up 11 months into a posting, and you are operationally deployable then I wouldn’t stand in your way , for the sake of a month, and you would be considered for a posting Let’s get the ost and ELS sorted and we can discuss later in year. Please do speak to K8 about the WBA challenges but this is definitely not a “do not speak to Tom email”![62]The parties agree that in August 2022 Insp Vallance became the RADT Inspector, the Claimant completed her ELS and defensive PPST course and the Claimant asked Insp Vallance to refer her to occupational health (“OH”). September 2022 OH referral[63]On 9 September 2022 Insp Vallance contacted OH as follows [132]: […] I managed to sit down with Suzanne and spoke about the reasons why she is recoup. She is feeling much better within herself although still struggles on some days and is some what anxious about jumping straight back in in case she sets herself back. She has been diagnosed with anxiety and depression and had just returned from a period of sickness when I took over. She has completed and passed her defensive OST and I have completed a new OH referral to address where this now places her in terms of being operational and what she can or cannot do. She has stated that she is keen to start rebuilding her confidence around being operational but we need to ensure she is permitted to carry out frontline policing in some context. She is yet to complete her ELS and full OST and I have received a notification that her ELS was cancelled. I have not had a chance to 22 of 108 speak to Suzanne as she is now on leave but will address this when we can both be on duty at the same time. […][64]On 12 September 2022 the Claimant had a phone consultation with OH which resulted in a report being issued the same day by OH saying [145]: […] Please Select: FIT TO RETURN TO ADJUSTED DUTIES […] Background to Referral PS Goldsmith reported history of depressive symptoms since June 2021 which she has attributed to work and non work related issues. In relation to the work related issues, she perceived that the work environment was stressful given the nature of the job and that the promotion process to an inspector role was also stressful - contributing to her sickness absence from June to November 2021. She also reported sickness absence in May to June this year which she perceived was due to the way in which she was being line managed. I understand she has a new line manager and reported no concerns. In relation to the defensive PPST. She tells me she has attended the classroom based course in August this year and will be undertaking the ELS course on 14th and 15th September. However she informed that she is not able to undertake the JRFT at present due to reduced fitness and confidence. However, she is reported gradual improvement to her confidence and making plans to lose weight and increase her fitness level to undertake the JRFT. I also understand the classroom based defensive PPST did not include arrest and restraint. We discussed a referral to the EAP service for counselling and a referral to the rehabilitation team for a one off session for a weight loss programme. She believes that this is not necessary at present. We also discussed a referral to the women’s session at ESB on Sunday`s - for confidence building. She also believes that this is not necessary. She remains on antidepressant medication - which she tells me was reviewed in June to a new type of medication and finds this beneficial. 23 of 108 On assessment of current symptoms, she reported ongoing improvement to her mental health symptoms including sleeping pattern, stable concentration, improved confidence and motivation. Following on from my assessment based on the information available to me, I assessed her to remain fit for full hours and adjusted duties - with consideration given to the following adjustments: 1, Fit for non-confrontational public facing duties, non-uniform and unfit for driving marked vehicles - until completion of JRFT, full PPST and ELS. 2, Ongoing allowances for micro-breaks to reduce the risk of prolonged static posture. 3, Ongoing offer of open access to management as support to discuss any concerns she may have about her health or work. 4, Remains unfit for public contact AID/ops, until completion of full PPST, JRFT and ELS. 5, I understand her full PPST, JRFT and ELS has lapsed in line with organisational policy and procedures. She is aware that it is her responsibility to schedule attendance at the full PPST, JRTFT and ELS when she is fit to do so. I have not arranged a review appointment but would suggest a re-referral to OH should the situation changes. […] Is the medical condition likely to be classified as a disability under the Equality Act [2010]? Whilst ultimately it is for a tribunal to determine whether an individual is considered to be disabled, in my opinion PS Goldsmith is unlikely to be covered under the Act as she does not have a health condition or impairment which:-• Is having a significant impact on her ability to undertake normal daily activities. Outlook/Prognosis: In terms prognosis, PS Goldsmith`s confidence is improving gradually and motivated to increase her fitness level to undertake the JRFT in 2 months time and progress to full PPST,. This timescale is guarded in my view as her fitness level will depend on how well she is progressing with her exercise plan. 24 of 108 […][65]The Claimant did not agree with OH report in respect of the recommendation that she was “Fit for non-confrontational public facing duties, non-uniform and unfit for driving marked vehicles - until completion of JRFT, full PPST and ELS.” [151]. She wrote to the OH specialist who had prepared the report to question this by email on 13 September 2022 asking if it could be checked by someone else in OH. The Claimant thought that with defensive PPST she could be allowed to go out in uniform and drive police vehicles and do public facing nonconfrontational or work in custody. She accepted that as a uniformed officer she was not trained to drive unmarked police vehicles and that as she was not a CID officer she would not have authority to go out in plain clothes. She thought she could however be a supervisor on ERPT. She thought the role of supervisor in ERPT was non-confrontational only and meant only doing things such as:65.1 going to a sudden death to supervise a dead body; or65.2 going to crime scenes after an incident had occurred.[66]She saw the risk of being involved in confrontation as very low and said that on all occasions other PCs would be present and if she did come across something en-route whilst in a police car, she could call for back up as she would have a radio to hand. The Claimant thought she could stand back and observe and communicate over the radio rather than getting involved unless absolutely justifiable to do otherwise and said she thought she would be protected by the car she would be in. For the reasons we explain in our analysis and conclusions we do not agree with the Claimant.[67]The Claimant asked Insp Vallance to make a second referral saying that the OH Specialist “was not grasping anything and was pretty useless. He’s recommended I can be public facing in plain clothes!” [150]. She challenged his guidance that she could not drive and pointed to his comment about Insp Vallance risk assessing the Claimant’s proposal that she be a supervisor in ERPT.[68]Insp Vallance replied on 16 September 2022 [149-150] to say: Tbh I don’t think another referral is necessary if the only discrepancy is the fact he has used the words plain clothes. You’re a uniform officer and as your line manager can be a bit flexible in what I implement. Most seem to stick rigidly to what OH say because of the fear of ending up at an ET. However we shall risk assess what you would be practically doing in your current role, which is not going out much and we shall discuss this further when we see each other if there are some enquires that you would like to do. I have sought some guidance re- what your defensive OST means and have ascertained the following: - Defensive PPST 25 of 108 An OH practitioner will decide if the officer is able to undertake Defensive PPST. Defensive PPST covers both classroom input as well as practical content for those that are able to participate in basic physical skills. This level of PPST will enable officers to undertake a wider range of roles but with limitations. Defensive PPST is a 1-day course that is a training option if you are on Adjusted Duties Defensive PPST is suitable for both police officers and members of police staff who are required to undertake PPST. Officers within this category of PPST will be able to undertake roles that entail them leaving police premises and dealing with the public in non-confrontational situations. They would be able to undertake routine enquiries and take statements from victims and witnesses. Officers interactions within this category would need to assessed as low risk by a line manager or risk assessor. I know when we last spoke that you have stated you hope to be able to return to ERPT to start to build your confidence again, however looking at the above and in the current climate I don’t foresee that we would be able to risk assess this to ensure that you would not become involved in something confrontational. I note in the OH stuff below that you have said if you was to be flagged down in the street you could call for back up… but there just isn’t back up readily available on team atm, and quite often it is supervisors that back up the PC’s. Again we shall discuss further when we next cross paths to formulate a more predictable plan[69]The Claimant did not respond to this email to express any frustration that the reference to ‘plain clothes’ was not the only mistake.[70]On 13 September 2022 the Claimant emailed the OH specialist highlighting that in her view defensive PPST is a physical course and should allow operational deployment [151]. The OH specialist said in reply that he had no objections to the Claimant’s line manager carrying out a risk assessment on her [150]. The Claimant asked Insp Vallance for a further referral to obtain a second opinion which Insp Vallance reasonably refused on the basis of the discrepancies highlighted by the Claimant.[71]On 26 September 2022 [154] the Claimant told Insp Vallance that she had seen a recent SNT vacancy advertised for Sergeants and wanted to apply having been in RADT for 9 months. Insp Vallance said she was happy for the Claimant to send her the applicable 728 but on 6 October 2022 the Claimant ruled the role out because it would not work with her husband’s shifts (he is also a police officer) and their childcare needs. 26 of 108 October 2022 – absence due to miscarriage[72]Sadly in October 2022 the Claimant needed a period of leave because she suffered a miscarriage [161]. During this period the Claimant was informed that Sergeant A and Sergeant B were moving to ERPT.[73]The Respondent needed both Officer A and Officer B in ERPT and so the tenure requirement in RADT was disapplied (they had not applied to transfer). Initially in transferring Officer A the Respondent made an error because Officer A only had defensive PPST at that time [216]. It realised this error (which was not that of CI Smith or Insp Vallance) and Officer A quickly got full PPST and completed the JRFT before taking up a role in ERPT. At this time the Claimant was not on the cusp of getting fit and then gaining her PPST. November 2022 transfer request[74]Having not accepted the limitations of her defensive PPST the Claimant, on 1 November 2022 sent a further 728 to CI Smith for a move to ERPT [168-169]. That said: I hope this email finds you well. I am aware that there have been some postings whilst I have been on leave and that two Sergeants who were promoted months after myself have been given the opportunity to move to response team. I was promoted 31st January 2022, although started RADT on the 17th of January 2022 slightly earlier than my posting date. ([Officer B] – has been in post 7 months and [Officer A] 25th July 2022- in post 3 months) have now been posted to ERPT to start in December. I am therefore emailing to ensure that I have not been overlooked in any way and I am being considered for a move to response team imminently also? I last put a 728 in asking to be moved to ERPT in July when I had been in the post for six months and this was rejected on the reasoning that there was a 12 month tenure in place for all Sergeants to remain on RADT. I also had put a 728 in prior to that one in March which was also rejected. As the tenure has now been removed, I therefore attach a 728 requesting a move from RADT to response team, as I have been in post on RADT 10 months. I would be grateful if I can be considered at the next LRPM for any roles available on response team A or C, at Freshwharf or JBH.[75]On 2 November 2022 the Claimant spoke to Insp Vallance re the 728 and Insp Vallance told her that she could not be posted to ERPT with only defensive PPST [168].[76]On 3 November 2022 the Claimant sent CI Smith an email with the subject “728 (3) request move from RADT to Response team posting”. On 4 November 2022 CI Smith added his responses. On 16 November 2022 Insp Vallance gave CI Smith her own comments on the email (but did not include the Claimant). The result is set out below (CI Smith’s reply to the Claimant is in bold and Insp 27 of 108 Vallance’s comments to CI Smith are underlined) [171-174]: Hi Sir Many thanks for taking the time to email me, (FYI your out of office is still on )… I hope you had a lovely break and I am sorry to yet again moan to you, nothing is ever plain sailing in RADT . I had a conversation with Ma’am yesterday, however I wouldn’t say we resolved the matter, more we agreed to disagree, as I don’t understand why there appears to be one rule in place for myself, yet another for other sergeant’s on RADT and I do not feel I have had an adequate answer for this, so I was awaiting something in writing. Here goes I would respectfully request some clarification in writing of the following points please, so that I can understand the decision making and what the plan is for me going forward. I appreciate that D team is not my first preference, but there have been opportunities on A or C team which I could have been selected for, but was told there is a 12 month tenure in place and I wouldn’t be put to the LRPM. Yet a vacancy comes up on D team and suddenly there is no tenure in place for [Officer A] and [Officer B] to move over. For example George Mercieca joined A team KW at the end of August, Lewis Smith joined A team KD at the end of August, Jamie Hall was posted to A team KD in July, John Stone posted to C team JI end of June none of these roles I was considered for. There are a couple of things here. Jude and I were clear that 12 months tenure was the status quo, but could be cut short, say 9-10 months if an opportunity came up. Time off for good behaviour! You are all now very much in that space. However, you had to achieve your OST I also understand that your recent OH report is not conducive to ERPT I am thoroughly demotivated with this situation, as I have been on RADT nearly a year and worked extremely hard and yet I am to remain here indefinitely and if I am honest feel completely undervalued simply because I haven’t been able to pass the JRFT due to a medical issue I have been overcoming. If I had a broken arm I would probably be able to move over whilst it healed, I don’t understand why I can’t be afforded the same opportunity whilst recovering from mental health. As an organisation we say we understand mental health, yet I am told that I am not valued to do anything other than sit in an office and work on RADT, despite having an OH report which says I can go out in an nonconfrontational capacity which means I am capable of going to sudden 28 of 108 deaths and scenes as a team supervisor. I passed practical defensive PPST which is aimed for officers to be able to go out and become operational, it is an adjustment for people like myself so that it opens up more opportunities and we aren’t discriminated against for medical issues. This is why they teach you techniques such as strikes, getting out of choke holds, pava etc. because they anticipate and cover us if we come across something. Could I come across something? Yes, but so could I walking down the street or driving into the yard. Currently the only obstacles I have to overcome is to improve my fitness and lose weight which were affected due to my depression, I have largely overcome my depression touch wood and I am no longer on medication and if I needed to deal with confrontation I would be more than capable of doing so and perceive I would be able to do full PPST in a few months. I have asked K8 to confirm that defensive PPST allows you [ and [Officer A] ] to work on ERPT, if it does then great. However, I understand your recent OH report is the issue now preventing you working operationally. You have to be able to respond and support your colleagues and protect the public. You cannot standby and call for back up as a uniformed sgt. The public and your colleagues would never forgive this. If the report reads as ive understood it to do, then this is the issue If you wish to send me the report so I can genuinely satisfy myself , pls do. Its brilliant that you feel you are on the road to recovery, and full PPST is clearly desirable. However we must get over the hurdle of the OH report. I feel Suzanne is down playing the conversation that she had with her OH advisor via e-mail where she makes an argument for being able to be deployed operationally which as you have stated would not be conducive to ERPT. I have attached a copy of that e-mail chain above. I asked her what her realistic goal was in terms of losing weight and starting her fitness and in what time frame she would like to achieve that by, she said she would like to be a size 8 immediately, which was clearly an off the cuff remark but would not commit to answering, I have offered to help her with the bleep test and said I would do practice drills with her to show her some techniques with the bleep test which lessen the distance, she stated she would not start running until she losses weight. Keeping me on RADT actually doesn’t help me in anyway shape or form to get back to full fitness, there isn’t a gym in the building and I am largely sedentary, not even having time for breaks or to eat properly most days. My development is being affected being kept on this 29 of 108 department as I am not learning anything at all, not challenged mentally, every day is the same. I get no time for WBA as we are too short staffed, despite having an assessor and it is difficult to find the evidence I need with only missing people to use. This is another point that I think is unfair, that the other two sergeants who have been posted are not even near getting assessors, yet will be exposed to a wide range of valuable evidence that quite frankly I need to pass my WBA within 5 months, but I am not being given the same opportunity. I don’t wish to sound patronising, so pls don’t read anything into this… but there are opportunities to train or exercise outside of work, either as part of your commute or on RDs. I am sympathetic tho, as having had training time at 19 and TSG, and great facilities, coming to EA has been a shock. I manage this by training on RDs and cycling and running as part of my commute. Are you able to prep food and bring it into the fridge to store? Suzanne has worked the following days on her WBA: - Marked up on CARM’s 03/08/202223/08/2022 I have attached an e-mail between myself and Suzanne in regards to her request for time to work on her WBA. She was assigned an assessor in Oct this year so has 6 months to complete it. There is more than missing persons from which she could gain evidence, and the WBA is designed for officers to gain evidence from their everyday role, I even recommended that a project she wanted to delegate to a PC from another team was under taken by herself, this was reiterated in the meeting when I said she could use it for evidence with some real work and focus on it. I did the FastTrack to Inspector scheme, I am a postgraduate and despite my brief career break have been in the met since 2011, so have a lot of experience to impart and have worked in CID main office as well as response team, yet I am kept in RADT whilst less experienced and/or capable sergeants and APS’ are on response team and in better positions. I am not sure if my newish warrant number is a factor? , but I have not only been a PC for four years, I had a career break and was given a new warrant number on my return, I am not sure if that is why other Sergeants have been put forward, because I am perceived to not have the experience? That certainly isn’t the case. Warrant number is irrelevant as is the FT / graduate status I am all of those. Your sole and only barrier [ if the defensive PPST allows you and Debs to go out] is the OH report This appears to be more of a issue for Suzanne than anyone else and 30 of 108 she tells me with every referral that she wasn’t allowed to keep her old warrant number, so she porbs just needs reassurance that in todays MPS when we have direct entries and officers on fast track schemes, it’s really not a barrier. I was told by Ma’am that due to [Officer A] working as an APS in LRT ( completely different department, different demands) that she deserves to move. I do not feel this is correct, as she was not a posted sergeant on LRT and chose to work on LRT as it suited, she could have moved at any time and was bid to be retained on EA based on keeping her on RADT as a Sergeant. I worked as an APS for 7 months on team, so I could also argue that I have spent 17 months now supervising merlin’s and so also deserve to go. There is just no logic to this argument. I never said [Officer A] ‘deserved’ to move, I simply highlighted that [Officer A] has also been within a role whether it be RADT or LRT for a long period of time that has also meant she has been away from a operational team. Why was I told previously when asked to move that I needed to remain on RADT for 12 months and now that has been lifted for other people without any notification of this being changed? When did this change? It should be generally 12 months, but we have new Sgts joining the BCu and Mo Mahmood made the decision whilst I was away to post new sgts to Radt Ma’am said I was put forward and discussed at the last LRPM but wasn’t selected. Since what date have I been being represented to the LRPM for a move and why wasn’t I notified? and how does it work in terms of being selected for vacancies? From speaking to Mo you weren’t considered for ERPT due to OH report, and no postings to Mist took place Suzanne has made her feelings known about wanting to move from within RADT, I have attached an e-mail where she stated she wanted to apply for an SNT role… which she never did apply for. In regards to the most recent LRPM where [Officer A] and [Officer B] were posted to team, I was notified that morning and Suzanne was off sick with a sensitive matter that had just happened and given her known feelings I did not think she would object if she was considered for a role change. I have been told by Ma’am Vallance that it is very unlikely that I will be posted to team due to only having defensive PPST which is not appropriate for team , however Officer A has defensive PPST the same as I do and both physical and mental health issues and yet has been posted to team. So no this feels like one rule for me and one rule for another. I am aware of her restrictions/ health issues due to being friends with [Officer A] and whilst I am really pleased for her that she can move 31 of 108 off RADT, this does make we question the fairness of me being told I have to remain. - Is the position of the SLT that I won’t be posted to team until I have full PPST? If that is the position, why has this been allowed for [Officer A] ? I need to confirm the defensive PPST allows you both out, but I understand that you have this OH report and she doesn’t. I never said that Suzanne would never be posted back to ERPT, I did however… same as you, point out that she cannot return to team with the mind-set of what she replied to the OH advisor with. I was also honest and explained to her that a sgt calling for back up and not getting involved would not sit well with her team, I also pointed out that resources on team are strapped and quite often there is only one sgt at one site carrying out multiple tasks such as OI, taser issuing, ERO if there are non-mist prisoners, enquires from PC’s, scenes to visit and then your own work file which is never where you want it to be, plus all the other supervisions, and that given she has only just returned from a period of MH sickness that I did not think ERPT would be beneficial to her wellbeing. All in all I just would like an equal crack of the whip Sir, I am not trying to be awkward or rock the boat or annoy the SLT, however I feel I need to speak out about this as I feel very hard done by. There has to be fairness with the posting process otherwise it is quite simply against the code of ethics and really unfair. Completely agree, I have spoken to K8 yesterday and we both agreed that all decisions must by fair and transparent. She was on aid so was difficult to go through things in full. I will ask her to reassure me about all the points you raise on Monday, but for clarity if your OH report is your only barrier, once this is overcome you will be posted. If you wish to be considered for Mist, there may be opportunities in due course.. let me know Kind regards Suzanne Goldsmith[77]On 4 November 2022 the Claimant replied to CI Smith [165] showing appreciation for his reply to her ‘war and peace email’, attaching her recent OH report and saying that it said that she was fit for “public facing duties – non confrontational, but no aid or ops” and making similar points to those made to Insp Vallance previously. She declined a discussion of a transfer to MIST saying she did “not feel that would be a step up from RADT” and that she wanted “to move away from constantly being at a desk doing only reviews with no variety.”. She said that she wanted to be treated fairly to Officer A and said she thought she and Officer A were in the same situation with respect to PPST. The Claimant chased CI Smith for a response on 14 November 2022 [165] and he replied the next day. He said [170]: 32 of 108 Morning Suzanne, apologies for the delay. Unless I am missing something, The OH report states. 1, Fit for non-confrontational public facing duties, non-uniform and unfit for driving marked vehicles - until completion of JRFT, full PPST and ELS. 4, Remains unfit for public contact AID/ops, until completion of full PPST, JRFT and ELS. I can also see that you have been offered support via the EAP, but declined it. I would strongly urge you to take all the support you can get to achieve your stated goal. You will understand that I can’t and won’t discuss [Officer A’s] OH report, but as already mentioned I will reassure myself that all officers deployed on ERPT are treated equally and fairly. 24 November 2022 grievance[78]On 24 November 2022 the Claimant submitted her grievance [431] which is her alleged protected act for the purposes of her Section 27 EqA victimisation complaints. Key sections from that grievance are as follows: Issue(s) being raised: Please tick the boxes that most closely describes the nature of your grievance: ☐Age Discrimination ☐Behaviour/Decision by Colleagues ☒Behaviour/Decision by Management ☐Bullying ☐Disability Discrimination ☐Discrimination by association and perception ☐Harassment ☐Policies ☒Postings/Transfers/Selection 33 of 108 ☐Pregnancy/Maternity ☐Racial Discrimination ☐Religious Belief/Faith Discrimination ☐Sex Discrimination ☐Sexual Harassment ☐Sexual Orient/Gender Reassign/ Marriage ☐Victimisation 2) Informal Resolution: a) Line Management Have you raised your concerns with a member of your line management on an informal basis in writing: ☒Yes ☐No (please refer to section 2b) […] Why Informal Resolution was not successful in resolving the issues/grievance I raised concerns with CI Tom Smith (second line manager) and my line manager Inspector Vallance. CI Smith asked to review my OH report that was the only action taken. I am being treated differently to another person who has more extensive health issues and also only has defensive PPST but has been moved to response team after three months on RADT as a substantive sergeant. I was told that I had to remain on RADT for 12months, I was not posted to response team as requested several times and I have been told that I have no hope of being posted there. This is one rule for one and another for another. Informal resolution was unsuccessful as the SLT have been unwilling to review the fairness of the matter 3) Details of Grievance: I was off sick with depression from June – November 2021, was due to and returned on recoup hours in November, I was due to be posted to team in NE in October 2021 however was still off sick, so requested that 34 of 108 I deferred my posting. I was then posted to RADT on promotion in January 2022 as the decision was made by the LRPM for all Sergeant’s joining that month to be posted to RADT, not because I was restricted. I went back to full time hours the day that I started on RADT. RADT is a stressful role, being the only Sergeant responsible for the risk of missing persons across three boroughs and CRIS reports etc. with risk and managing high risk missing person investigations including directing team units, intel, phone work, speaking to superintendents etc. Also the PCs on the department are either there through poor health i.e. Mental health or injury or discipline matters and I have had suicidal PCs etc. that I have dealt with outside of work etc. so there is a large welfare piece. There is no downtime at all, not even for admin and I recognized early on that this was not the appropriate unit for me to be in as I had no support whatsoever, so on the 2nd of March 2022 I sent a 728 to CI Smith requesting a move to team based on RADT being poor for my mental health, this was rejected by CI Smith on the grounds that I need to take the JRFT and PPST. No alternative posting was offered for my mental health and no tenure was mentioned. I spoke with [Officer A] about the matter who advised me she had done Defensive PPST which allows her to go out as she is ‘public facing nonconfrontational’. Once I had been recoup for a year I was changed to adjusted duties which then opened up the opportunity for me to complete defensive PPST. In July 2022 I spoke with CI Smith over the phone about doing the defensive PPST, I can’t remember the exact date but around a week prior to the 28th July, to allow me to go out on team and nothing was mentioned about this being inadequate to allow me to do that. In July 2022 I was changed to adjusted duties and on the 28 July 2022 sent a 728 to CI Smith reminding him of our conversation and stating I was now able to book defensive PPST and will be doing so when I can get on a course, therefore negating the need for me to stay indoors and could I again apply for a move to response team. I received a response on 28 July 2022 that there was a years’ tenure in place and I would be kept on RADT for 12 months, or at the very earliest I could apply for a move at 11 months. I was not notified of this ‘tenure’ in January when I started the role and no emails were sent out RADT wide about the tenure, so this just appeared to apply to me, especially as other Sergeant’s had been moved ([name of other officer] and [name of other officer]). [name of other officer] was also due to be moved around July 2022 but I believe this was halted due to misconduct issues. I achieved defensive PPST practical and ELS at the end of August 2022, I then asked my line manager Ma’am Vallance to refer me back to OH to review what I can or can’t do which she did. The practitioner who I spoke to had no knowledge of defensive PPST at all, so it was a trying conversation because he didn’t seem to understand the concept of it, I kept telling him it was practical and he was adamant that they only do 35 of 108 classroom based defensive PPST and he eventually gave me the following restrictions: 1, Fit for non-confrontational public facing duties, non-uniform and unfit for driving marked vehicles - until completion of JRFT, full PPST and ELS. 2, Ongoing allowances for micro-breaks to reduce the risk of prolonged static posture. 3, Ongoing offer of open access to management as support to discuss any concerns she may have about her health or work. 4, Remains unfit for public contact AID/ops, until completion of full PPST, JRFT and ELS. 5, I understand her full PPST, JRFT and ELS has lapsed in line with organizational policy and procedures. She is aware that it is her responsibility to schedule attendance at the full PPST, JRTFT and ELS when she is fit to do so. I did not think these restrictions were appropriate and were somewhat severe given that I’m a uniformed officer and there was no reason why I could not drive, so it made little sense as to why I had been given authority to go out in plain clothes but was unable to drive myself. I queried it and the OH officer stated that he had no objections to my line manager risk assessing it and making me fully deployable. On the 13th September I asked my line manger Ma’am Vallance if I could get a new request sent to OH so I could get a second opinion from someone who understands what defensive PPST is and was told in her response on 16 September that she didn’t think another referral was necessary if the only discrepancy was the fact he used plain clothes, as my line manager can be a bit flexible with what is implemented but looking at the defensive PPST she doesn’t foresee that they would be able to risk assess it to ensure I would not become involved in something confrontational. Whilst also copy and pasting the definition below of defensive PPST [AT THIS POINT THE CLAIMANT INCLUDED A DEFINITION OF DEFENSIVE PPST] The definition itself even states that I would be able to undertake routine enquiries and undertake roles leaving police premises. As a supervisor on team the main role is supervising sudden deaths and also attending crime scenes, both of which would fit into the ‘routine enquiries box’ and would be ‘low risk’ given that the incident would have finished and other officers would be at the scene. Defensive PPST as I understand it is to open up more roles for people such as myself who suffer with medical issues (my own being covered by the equality act) etc. so that they aren’t 36 of 108 stuck in an office all day and unfairly disadvantaged due to their health, however there seems to have been no point completing it at all, as I am still being told I am unable to undertake any other roles other than RADT, yet other people with the same restrictions are allowed to move. In October 2022 whilst on leave, I received word from [Officer A] and [Officer B] that they had both been posted to response team. ([Officer B] – had been in post 7 months and [Officer A] 25th July 2022- in post 3 months) and were due to start response team in December 2022, neither had fulfilled the ‘tenure’ I was told was in force and there had been no notification that it had been lifted. Upon returning to work I found out that they had been asked by Inspector Vallance if they wanted to move to response team ahead of the LRPM and then were subsequently moved to D team when a D team Inspector [name] (was covering for CI Smith), who also used to work on D team with Ma’am Vallance and [Officer A] happens to work on D team, so also knows [name]. Subsequently both [Officer A] and [Officer B] moved to D team. Upon returning to work after my bereavement I sent a 728 in an attempt to remind the SLT that I was still there and had been for ten months without being posted. I am friends with [Officer A] and am aware of her medical issues from what she has told me both physical and mental health and was told by her she has the same restrictions as myself on her last OH report stating she could be ‘public facing non-confrontational’, she also only has defensive PPST the same as myself. However after three months of being a Sergeant on RADT [Officer A] has been posted to response team by what appears to be complete nepotism. I am aware as a previous staff officer [Officer A] was signed off by [name] a former Superintendent, who had completed a risk assessment for [Officer A] when she was a staff officer granting her the ability to go out and about as a staff officer and also drive as it was needed for the role. From what [Officer A] has told me no further risk assessment was done by Inspector Vallance or for therole of response team and the risk assessment she had for a staff officer has been used as a justification as to why she is allowed to go to response team and I am not, even though the risk assessment was written for a completely different role a long time ago. I have largely recovered from depression and just need to lose weight and get fit (side effects of depression) to tick the box of the JRFT or look into passing an AFT. I cannot understand how it has been risk assessed that [Officer A] has been deemed suitable to go to ERPT and I have not. Especially as the OH advisor has stated that my line manager can risk assess me to be fully deployable and he has no objections to that, however this has not happened. I have also been told that my OH report is the issue, even though I could be risk assessed at a local level as [Officer A] has been to give me the authority to go out. The fact that the management have been unwilling to do so is a fairness issue. 37 of 108 I then had a meeting with Ma’am Vallance on the 2nd of November I believe, where I raised it and she stated that I am extremely unlikely to ever be posted to ERPT with only defensive PPST and I questioned why [Officer A] was and received no adequate justification. I also asked why the ‘tenure’ had been lifted for those two without any notification and she stated that as [Officer A] was an APS on LRT that she deserved to go. LRT was a different department which was extended into RADT. Previously mainly dealing with CRIS reports and not missing persons. I again do not feel that is fair, as [Officer A] chose to stay on LRT to get evidence for her board, she was not forced to remain there, not forced to be posted to EA and could have left at any time and Mr Smith had previously said that the tenure was for all Sergeant’s posted to RADT, she was also bid to be retained on EA to stay in RADT. So whatever way you look at it the tenure has only ever been applied to myself. PS Chatters who joined RADT in January at the same time as me was also allowed to leave after a few months without a tenure in place for him, [name] was also allowed to leave and take up an Acting Inspector position, a move for [name] was on the cards, however a tenure remained for me. I was also told by Ma’am Vallance that I was put forward to the LRPM in October during our meeting but wasn’t selected. Then later told by CI Smith that I wasn’t put forward to the LRPM due to my OH report in the email of the 4th November. Mr Smith contacted me 3 November 2022 saying he thinks Kate had picked it up and to let him know if that wasn’t the case. I then emailed him back on the 4th November advising we had not resolved the matter and outlining in writing my grievance in the hope of informal resolution. On the 4th November I received a response where he quite rightly stated he was not there for the decision making and that it should generally be 12 months, but that Mo Mahmood decided to post new sergeants to RADT. He asked me to send my OH report to him for review and was going to review that Defensive PPST would let me and [Officer A] both out on ERPT. He also offered me a role in MIST team, which is basically exactly what I am doing now, constant reviews sat in an office, so I declined this as its swapping one poor role for another and a lesser role than what had been offered to [Officer A], so quite frankly why would I accept it as I would be no better off. I received no word so on the 14th November I emailed Mr Smith requesting a response. I received a short t response stating that unless he is missing something my restrictions are (and listed them) …and that he could see I declined EAP and would strongly urge me to take all support I can to achieve my stated goal. And that he won’t discuss [Officer A] ’s OH report with me (which I hadn’t asked him to do) and that “he will reassure himself that all officers deployed to ERPT are treated equally and fairly” yet made no attempt to reassure me of that, which was the purpose of me seeking an informal resolution. Given I was only referred to OH on the occasion of the report to discuss my defensive PPST, not because I was in MH Crisis this response was a bit short 38 of 108 sighted and I do not believe that not accepting counselling should be used as a stick to beat me with. Help with JRFT[79]As is clear from Insp Vallance’s comments on the Claimant’s email of 3 November 2022, Insp Vallance had already offered the Claimant assistance with regaining fitness. On 1 December 2022 she sent the Claimant an email saying [178-179]: I have spoken to OH today to seek some guidance on your current adjustments that are in place. I refer to your e-mail that you sent where you stated the following: - Currently the only obstacles I have to overcome is to improve my fitness and lose weight which were affected due to my depression, I have largely overcome my depression touch wood and I am no longer on medication and if I needed to deal with confrontation I would be more than capable of doing so and perceive I would be able to do full PPST in a few months. Also in reference to the conversation we had at work a few weeks back, you stated that you was not happy to start running just yet in case it caused you any issues prior to loosing weight. OH have stated that if you feel that you would be able to pass PPST but are limited by the fact you can’t run the Bleep test yet then I can complete an OH referral for you and request a fitness assessment. This would then enable OH to make a determination on whether you would be able to complete one of the alternate JRFT’s such as a rowing machine. Can you confirm if you would want me to make this OH request as if approved for an alternate JRFT then you would be able to complete full PPST and return to full operational duties. This would enable you to be considered for a move to a forward facing role as and when one becomes available and also enable you to work OT operationally if you so desire. Regards[80]Insp Vallance then referred the Claimant to OH to discuss an alternative fitness test. Alleged berating by Insp Vallance[81]The Claimant alleged that on 13 December 2022 Insp Vallance berated her in front of the office for being late on shift [180]. She did not add this as a complaint to her grievance. The Claimant submitted a statement from PC Aaron Johnson on this but he did not attend to give evidence. The Claimant withdrew her allegation of victimisation in this regard (we presume because she knew that 39 of 108 Insp Vallance did not know of the alleged protected act at this time). We find that Insp Vallance has a direct, straightforward but not uncaring management style. Claimant sick leave in December 2022 – January 2023[82]The Claimant had a period of absence over Christmas and New Year 2022/2023 and Insp Vallance was advised by HR that she had the option to take informal action. HR summarised the relevant sickness absence as follows [195/204]: Sickness Start Date Sickness End Date Total Reason 31/12/202206/01/2023 7 Respiratory - Influenza 23/12/20222 3/12/2022 1 Respiratory - Sore Throat / Infection 07/07/202218/07/2022 12 Covid-19 (confirmed diagnosis) 17/05/202217/06/2022 32 Mental Health - Other Total Days Absence52 Discounted Covid 18/03/202222/03/2022 5 Corona virus type symptoms (not confirmed as Covid19) 09/03/202212/03/2022 4 Corona virus type symptoms (not confirmed as Covid19)[83]Insp Vallance elected not to take informal action. At this stage she knew that the Claimant had raised a grievance. 11 January 2023 return to work meeting[84]As referenced above, by 19 December 2022 Insp Vallance knew that the Claimant had raised a grievance but did not know what it was about. 40 of 108[85]On 11 January 2023 Insp Vallance held an in person Return to Work meeting with the Claimant. We accept Insp Vallance’s evidence [KVWS39-43] that:85.1 the Claimant, having been absent after her miscarriage, was also on sick leave between 31 December 2022 and 6 January 2023;85.2 a return-to-work meeting was necessary as the Claimant’s periods of sickness over the Christmas period had triggered a compulsory update request from HR [190] because it was technically two periods of sickness over the break, and her sixth in a rolling 12-month period. Two of the periods were discounted as they were COVID-related and a further period was discounted as pregnancy-related. The Claimant then reported sick again on the 31 December 2022 resulting in a combined total of four periods of absence.85.3 the periods of sickness also equated to over thirty days.85.4 she thoroughly prepared for the meeting as there were some specific points she wanted to discuss and because in a meeting on 2 November 2022 they had walked away with different understandings of the meeting so it was important to have a record.85.5 she wanted to tell the Claimant that whilst the Claimant’s absence had already reached the threshold for informal action to be started, she had decided to use her discretion not to take that step at that stage (the last two periods of sickness having been for the same reason and the Claimant having returned from sick leave but not physically returned to work before reporting sick again over the Christmas period).85.6 she wanted to discuss the Claimant’s WBA (work-based assessment) and the amount of time that the Claimant was allocating herself in work to focus on that when there was some expectation that this would be done in the Claimant’s own time and the allocation of WBA time in work needed to be fair across all those needing it and so Insp Vallance needed oversight.85.7 she wanted to discuss the Claimant’s progress with her fitness so that she could attain her full OST.[86]In this regard we do not find that Insp Vallance anticipated the topics of conversation to have been particularly sensitive or difficult.[87]We do not accept that Insp Vallance would have spent a number of days preparing for the meeting. Given her workload and the topics of conversation, that would seem improbable to us.[88]The meeting was not in fact contentious and did not itself lead to any difficulties between Insp Vallance and the Claimant.[89]Insp Vallance then, five days later, went on a residential course from 16 January 2023 – 10 February 2023. After returning from the residential course, on 16 February 2023 Insp Vallance sent the Claimant notes that she had prepared of their meeting on 11 January 2023 [199-203] saying [256] “Just found this whilst 41 of 108 going through my e-mails and I can’t find that I sent it to you so just in case I didn’t this is a copy of the return to work meeting we had. I’ve just read through it again to remind myself of the context. Have you done your 6 month PDR for me as it is PDR time and I need to try and get everyone’s done and up to date and don’t wat to be rushing in April with the coronation coming up. Also how did the blood test go? Was it a positive result?”.[90]The Claimant and Insp Vallance then exchanged the following emails [255-256]: Claimant to Insp Vallance 20 February 2023 Thank you for your email, can I ask if the meeting we had was recorded? I ask because you weren’t making notes to my knowledge and the detail of the minutes are comprehensive and I thought the meeting was a RTW catch up not a formal one. My results play no impact on my role, so I do not feel the need to discuss. Insp Vallance to Claimant 21 February 2023 No, Comprehensive notes made at the conclusion of our meeting around the topics I wanted to discuss with you and relevant points raised in regards to your sickness etc were already compiled on my laptop so I had them to hand for the meeting. It defo was a RTW meeting but wanted to ensure what we discussed was captured in writing as per the SOP’s in regards to absence management. If you would prefer any meetings were recorded then I would have to seek advice on that, but from recollection I think that is at your discretion. Claimant to Insp Vallance 21 February 2023 I am unsure why I was then sent a transcript like a suspect interview presented as word for word account of our meeting and my comments, which is certainly not common practice. I do not give consent to be recorded covertly or otherwise. I would also suggest going forward if detailed formal minutes are going to be taken at day to day informal meetings that a Fed rep should be present, as per advice I have been given on this. I also can’t agree meeting minutes when I wasn’t taking notes or recording myself. Insp Vallance to Claimant 22 February 2023 I haven’t sent you a transcript as if you are a suspect, I have diligently documented the content of our discussions as a reference point moving forward. I have already reassured you that the meeting was not 42 of 108 recorded and I have never recorded any informal meeting with any of my staff and those that have were because they are misconduct or performance related and have been recorded in line and in the presence of a Federation rep and HR representative, but what I have often ensured that I complete and then provided them with is the minutes post meeting which is in fact common and good practice for line managers. The requirement of a federation representative being present for every informal discussion between a line manager and their staff is quite simply an unachievable expectation as they would not have enough hours in the day, and the purpose of conversations between line mangers and their staff is to address areas of concern before anything formal needs to be documented, which is always my preferred means of management to help and guide staff whilst also outlining my expectations as an Inspector. Can I confirm whether you feel or believe that the minutes I have sent to you are inaccurate in regards to what was discussed?[91]The Claimant did not then comment on any in accuracy in the notes, nor did she make any formal complaint about the meeting being recorded covertly.[92]As to the allegation that she had covertly recorded the meeting on 11 January 2023, Insp Vallance’s evidence was that:92.1 she did not think the notes of the meeting did represent a verbatim account;92.2 the meeting had lasted around 30 – 40 minutes;92.3 she did not make notes in the meeting (knowing all the things that she wanted to ask the Claimant so all she needed to do was remember the response);92.4 she had documented the dialogue immediately after the meeting and has always had good memory recall for direct conversations when there are no other distractions around.92.5 She did not retain any handwritten notes of this meeting (having transcribed her handwritten notes she disposed of them confidentially).[93]We do not consider it probable that Insp Vallance was able to make this record of the meeting from notes that she did not take at the time, even if she made them immediately after the meeting. It is agreed that Insp Vallance’s laptop was open and her phone was on the table.[94]We find that the notes do read like a verbatim account. We accept the Claimant’s submissions that the following are suggestive of the note being a transcript and it being improbable that Insp Vallance was able to recall this detail from notes only taken after the meeting had concluded:94.1 The Claimant responding ‘yeah’ and ‘yes’ at various points in the conversation. For example, “SG – yes, no worries ma’am” at [200]. 43 of 10894.2 The notes appear to capture the natural ebb and flow of the conversation (for example, the exchange at the top of 202 where the Claimant states “yea definitely, my mind set has changed” & KV responds: “no that’s good, I know when I’m tired and flagging on energy I will be more tempted to eat chocolate or sweets because my brain knows it will give a sugar hit.”[95]Given the planned nature of the meeting and the resulting content of the notes of the meeting (which were both largely uncontentious and innocuous), it is difficult to rationalise why Insp Vallance would:95.1 make an audio recording of the hearing;95.2 take the time to type up a record of that audio recording;95.3 not tell the Claimant that she was recording the meeting; and95.4 then send the Claimant a transcript of the meeting which would be so likely to lead to that suspicion on the part of the Claimant.[96]The Respondent denied that any form of recording had taken place and the Claimant did not proffer any alternatives. Whilst it might have been the case that Insp Vallance is mistaken in her recollection, we consider that it may be marginally more likely that the following happened:96.1 Insp Vallance opened a word document on her laptop and set her computer to automatically transcribe the conversation using the built in functionality;96.2 She did this for expediency – so that she had a good, timesaving note from which to create the note (correcting misspellings and errors created by the software);96.3 After her residential course she then did the exercise of correcting the errors and sent the document on to the Claimant. She could have just bulleted the key points rather than sending the Claimant the transcript and this would not have raised the suspicion of covert recording.[97]The audio of the meeting was either recorded or it was transcribed using the Microsoft Word functionality or other similar technology and we refer to these alternatives collectively as “Automated Capture”.[98]We note here that at the meeting on 11 January 2023 when Insp Vallance asked about the practicalities of the Claimant putting some work into her WBA during her own time when not on shift, the Claimant said [201]: “I think it’s hard because we are both full time so we work opposite shifts as when im home he is at work so I am looking after Charlotte and I do have to be mindful of my depression. Doing a 40 hour week and then doing too much on top as that is what got me into a difficult position before so I do struggle to find time.”. The Claimant then accepted that she knew before she applied that WBA work 44 of 108 would be a ‘heavy element’ in promotion to Sergeant. Grievance progress[99]On 15 December 2022 CI Smith had a grievance meeting with Insp Qureshi (Inspector, ERPT Informal Resolution Champion) [183-184]. After the meeting CI Smith sent the following email to Insp Qureshi: As discussed, Suzanne is not currently deployable. If she shares her OH report with you and the grievance team this will become clear. She has been offered a role in Mist and NPT and she has declined them. There is no other role for her on the BCU. She will be free to apply for another adjusted role [ MetCC etc] once she completes her WBA. The comparison with the other officer is disingenuous. I will not be sharing [Officer A] s OH report, but it is not remotely comparable. I have already explained both this aspects to Suzanne. The decision to move [Officer A] was not made by me, it was done whilst I was on AL and took me somewhat by surprise. On my return I had made it clear that I wanted reassurance that [Officer A] was fit for duty. I received that assurance. As I mentioned to Suzanne several weeks ago and to yourself tonight, I will reassure myself that there is fairness and equality in all moves on ERPT. If upon my investigation tomorrow, this is not the case then [Officer A] won’t move. I can’t be any clearer However all of this is moot for Suzanne. She remains of the view that it is acceptable for a police officer, on duty, in uniform to be flagged down by a member of the public, or indeed witness something herself, only to refuse to get involved and instead call for help. Not only is there case law in this area [manslaughter by omission] but this fails the public service test. I appreciate this will get escalated as it cannot be informally resolved, but as per the above, this matter cant be resolved as Suzanne is frankly asking for something that is not possible. I will await further correspondence if the grievance team wish to explore this any further, but as we discussed tonight, the decision not to let her out on the street will not be changed until she has the green light from OH.[100]We accept what CI Smith said in this email.[101]Neither CI Smith nor Insp Vallance took the Claimant’s grievance personally because the root of it was a complaint about the difference of treatment between Officer A and the Claimant when Officer A was transferred to ERPT. That was not a decision taken by either of them and was not, in any event, unfair because both Officer A and Officer B by the time of their redeployment had full PPST.[102]By 19 December 2022 Insp Vallance knew that the Claimant had raised a 45 of 108 grievance but did not know what it was about. On that date Insp Qureshi (ERPT Informal Resolution Champion) had sent an email to Insp Vallance with the subject “Grievance notification” saying “I have been asked to review a Grievance submitted by PS Suzanne Goldsmith as an informal resolution champion. Please note you are named as one of the subjects of the grievance. Having liaised with your SLT the informal resolution hasn’t been successful so I will be passing it back to the central team. This email is to notify you of the grievance. No action is necessary [185]”.[103]On 16 February 2023 the Claimant had a grievance meeting with Insp Haver and we were provided with the notes of the meeting [235].[104]On 22 February 2023 the Claimant sent a lengthy email with complaints to a Ms C Clark who was the special point of contact on the Claimant’s grievance [269- 271]. Ms Clark suggested that the Claimant consult with a Federation Representative and commented that a lot of the things mentioned by the Claimant in her email could be dealt with under her grievance or by speaking to another line manager who the Claimant thought could help. She declined to get involved as the SPOC on the Claimant’s grievance and her need therefore to maintain impartiality in that role. The Claimant’s email to Ms Clark made comments on matters some of which we will come on to in more detail. However, here we just note that the email covered matters such as the Claimant’s suspicion that Insp Vallance had covertly recorded her, ‘slightly misogynistic’ (with reference to managing childcare) and ‘discriminatory’ (reference to her mental health) reasons for her not being allowed to do her inspector exams, difficulties the Claimant had had with her previous manager Insp Weedon, the limits on Claimant’s involvement in Goodmayes, her request to move to MIST and CI Smith’s suggestion of a meeting and reference to Insp Vallance writing up the Claimant’s absence.[105]That same day CI Smith sent an email to Insp Haver in respect of the Claimant’s grievance saying that he had tried calling her a couple of times and [254]: “I have a few concerns about all of this, but happy to chat with you more to explain [] Broadly no issues in sitting down with SG but speaking candidly there is no grievance here! I have tried again speaking to her this week but she is down a rabbit hole on this one and doesn't seem willing to engage”[106]Also on 22 February 2023 the Claimant sent an email to Insp Haver forwarding an email from CI Smith (which we address separately and which confirmed that CI Smith would not transfer the Claimant to MIST at that time) saying [258]: I am not sure how mediation can be possible with this attitude… I have also received an email from my line manager which I feel is misogynistic and also discriminative of my mental health which I attach.[107]On 1 March 2023 the Claimant confirmed that she did not want mediation on her grievance [273]. There were then a number of meetings between individuals and Insp Haver as the grievance investigator: 46 of 108107.16 March 2023 Insp Vallance [274]107.27 March 2023 CI Smith [278]107.36 April 2023 CI Mahmood [304]107.413 April 2023 Supt Rolston [306]107.514 April 2023 Matt Wilson [308][108]On 21 July 2023 the Claimant received the outcome of her grievance which the Claimant did not appeal [415, 403-413]. Key points from the outcome are as follows: Grievance Advisor's Assessment Concern 1 - The aggrieved feels that she has been treated differently to another officer with similar health issues and restrictions around deployment.4.1 Based on the evidence from KV and TS, the restrictions placed on the aggrieved and DH would have precluded both officers from being posted to ERT; therefore the decision to move DH to ERT does appear, on the balance of probabilities, to have been unfair.4.2 Rationale for this decision has been provided by MM and MW – both state that they were unaware that the restrictions applicable to DH would have prevented her from being posted to ERT.4.3 This rationale was not recorded or documented at the time, but was discussed in a ‘pre-meeting’ before the LRPM took place.4.4 The decision was ratified at the LRPM. Note: The assessor has not spoken to the Chair of that particular LRPM as there is no dispute about what took place during that meeting.4.5 Once this issue was identified by TS upon his return from leave he prevented the move from taking place until DH met the requirements to join ERT, namely passed the JRFT and PPST; she did not move to ERT until this was complete. However, she was afforded time to bring her PPST and ELS up to date in order to take up the position on ERT.4.6 SG has commented that the position was ‘held open’ for DH and that she could have been afforded the same opportunity; TS has confirmed that when SG meets the criteria to move to ERT she will not be prevented from doing so.4.7 Although the decision to post DH to ERT was unfair when compared directly to SG, the outcome for SG would not have been affected as SG did not meet the criteria to work on ERT. 47 of 108 Concern 2 - The aggrieved feels that she has been treated differently to another officer in relation to tenure in that the tenure policy has been waived for others but not for her.4.8 Having considered all of the evidence from MM, MW and TS it is the Assessor’s conclusion, on the balance of probabilities, that the aggrieved has been treated differently with regard to waiving the tenure policy.4.9 It was unclear whether or how the tenure requirement was conveyed to the Aggrieved – she does not recall being told about it, there is no email confirmation and TS believes that it was possibly conveyed verbally. Therefore, on the balance of probabilities the Assessor does not feel that the Tenure policy was conveyed clearly and correctly to the Aggrieved. 4.10It is unfortunate that the rationale for the decision to move DH and AH was not documented at the time and that the decision makers (MM and MW) were both unaware of the Tenure policy despite being the Strand lead and representing ERT at the LRPM. 4.11It is accepted that the aggrieved could not have been moved to ERT due to medical/OH restrictions, however the email from TS (Appendix A3) references Tenure as a reason to decline the move and this policy has not, on the balance of probabilities, been applied fairly compared to the other two sergeants. 4.12The question around suitability to work on ERT whilst only having Defensive PPST has been addressed by KV at 3.16 and it is the Assessor’s conclusion that it would not be suitable for officer’s to move to ERT if they only have Defensive PPST and not full PPST. Recommendations The Strand Superintendent should have access to all policies pertaining to their strand and be aware of their content. (Refers to point4.10 ) LRPM Chair (or Deputy) should be made aware of any tenure policies when ratifying decisions at the LRPM and also any restrictions or adjustments that may affect proposed movements of staff. (Refers to point 4.2, 4.3, 4.4, 4.10) Any ‘Pre-LRPM’ meetings where moves are discussed should be followed with email confirmation of decisions/rationale and submitted to the LRPM Chair for transparency and audit purposes. (Refers to point 4.3, 4.4, 4.10) LRPM outcomes should be confirmed to officers/staff by email following the LRPM as well as recorded in the LRPM minutes. (Refers to point 3.40, 4.3, 4.4) 48 of 108 Goodmayes ‘project’[109]On 24 January 2023 the Claimant sent an email to PS Archer (Police Sergeant/ Acting Inspector EA Confidence and Satisfaction Team) asking whether she could attend a Goodmayes meeting [226]. Goodmayes is a mental health hospital from which some of the missing persons work handled by the Respondent originates. A co-ordinated approach and understanding with Goodmayes is therefore important to the Respondent in respect of a number of aspects of its work. The next day PS Archer replied saying that the Claimant would need to ask Insp Vallance when she was back as Insp Vallance might want to attend [226].[110]On 10 February 2023 the Claimant sent to Insp Vallance email correspondence she had been having with DS Kez Hussain (East Area Mental Health Team) to Katie Vallance. The Claimant explained that she could not attend the meeting with Goodmayes on 16 February 2023 but commented “let me know of any future ones and I will happy tag along if possible” [231-232].[111]Insp Vallance returned to work and on 13 February 2023 replied to the Claimant to say that she herself would be attending the meeting [225]. We accept the reasoning in her reply to the Claimant when she said: “As this is something that affects the whole of RADT in terms of demand and to ensure that the outcome of the meeting is beneficial to all and that an input with RADT will serve a purpose at this meeting that the MPU are not able to convey then in the first instance if necessary I will attend this meeting on the 16th as this is a working day for me and will not require anyone to be compensated for it.” She then reasonably asked the Claimant for more information about what she was seeing in her work and she said to DS Hussain “let me know your availability this week so we can touch base about this and to weigh up the benefits for having a RADT representative present”. The Claimant replied to agree with Insp Vallance’s approach and to say that she had “saved examples with reference numbers that my team have dealt with” and that she had been “waiting for your return to see if we can collate them from other RADT teams”. Insp Vallance thanked the Claimant. Transfer to MetDet/MO9[112]On 12 February 2023 the Claimant sent an email to Insp Vallance to let her know that she had applied for transfer to Met Detention [593]. She said “this is wholly dependent on where they offer me… I initially put one in and cancelled it as wanted KW but they said that it was a no go. I have resubmitted it with a view to going to Wood Green, not ideal but better than RADT… If I can’t get Wood Green or nearer then I will withdraw, but apparently I need to apply to find this out. So it is a tentative application.”[113]Insp Vallance replied the next day to say “Suze Sorry just had a thought, are you not tenured to the BCU for 2 years following promotion and need to be signed off your WBA? If anything has developed in regards to your WBA since I have been off that I have been e-mailed about I’ve not reached it yet in my 500 e-mails.”. The Claimant responded “Ahhh I didn't know that... no worries. WBA very close to sign off now I've done loads :)”. 49 of 108[114]The same day (13 February 2023) Insp Vallance had sense checked her understanding with CI Smith whether “for all ranks when promoted they are tenured to their BCU for 2 years”. She must have been confident in this because she sent her email to the Claimant before she received CI Smith’s reply on 14 February 2023 to day “Correct. Speak properly when I’m off train”. Insp Vallance then sent an email to the Claimant saying “I have confirmed with Mr Smith and the tenure to the BCU is 2 years so I will not be able to support your transfer to MetDet at this time. However this will not prevent you applying to roles within EA BCU but anything outside of that will not be permitted until you have been on EA as a Sgt for 2 years.”. 20 February 2023 request to transfer to MIST[115]On 20 February 2023 the Claimant sent an email to CI Smith saying [240 – 238]: “You previously mentioned the prospect of me going on MIST team, I understand that Brad Newton is going to team shortly and I would like to suggest that I replace him on A team MIST if at all possible? I feel that I am still lacking some evidence for my WBA and feel like I stand a better chance of finishing it off on MIST. I also think a change of scenery would be good for me, albeit a similar role.”[116]The same day CI Smith replied to say that they had just done the Sergeant “rebalancing” and from memory the Claimant had asked for RADT. He suggested meeting. The Claimant corrected CI Smith’s understanding saying she had requested “team” (which we take to be ERPT) but was not posted again (for the avoidance of doubt we do not consider that, given that she only had defensive PPST she could have a reasonable expectation of posting to team). She said that she would rather not have a one to one meeting due to the ongoing grievance and added “not wishing to be awkward”. She reiterated her request for a transfer to MIST saying “having done over a year in RADT and no possibility of going to team a change of scenery is better than nothing”.[117]CI Smith replied on 21 February 2023: Morning Sorry I'm obviously still confused Can you just confirm 4 things for me Are you an adjusted officer? Do you hold a valid 5.4 pass on the bleep test? Do you hold a valid PPST ( not defensive) authority? Do you hold valid ELS authority ?[118]The Claimant confirmed that nothing had changed in her situation and that was 50 of 108 why she was “asking to go to MIST for the time being, which is an indoor posting”. CI Smith replied, again on 21 February 2023: Thank you that clarifies things, I was confused because you state below you had asked to go to response team and I have just seen your VT to MO9. Regarding you comment below about awkwardness with respect to a grievance. There is no awkwardness. We are professionals in the MPS. The three of us will come together to discuss this on Thursday at JI @1430 We can absolutely support a move to Mist, I’m only surprised as I am certain you previously did not want this. This is why we will all speak in person, to clear the air and truly understand your concerns Thanks Tom[119]It was this same day that Insp Vallance sent her email to the Claimant about the Claimant’s request to do the Inspector exam which we reference below [244- 245].[120]On 21 February 2023 the Claimant declined a calendar appointment for a catchup meeting proposed by CI Smith for 23 February 2023. She said: Hi Sir Appreciate you sparing the time for a meeting. I have spoken to Lisa Hayden and she can’t make this meeting, I would feel much more comfortable attending any meetings with a fed rep given the ongoing grievance etc. and rejection of my Inspector’s exam that Ma’am Vallance wants to discuss. If possible can this please be rescheduled for when Lisa can attend with me.[121]On 22 February 2023 CI Smith replied [258]: Whilst I am happy for Lisa to attend any meetings i have with staff I'm not sure she would get any work done in the day! The offer was to sit down with you and talk through your career plans and offer a sounding board, options, plan a way though as well as manage expectations, I'm not sure inviting a fed rep is within the spirit of this offer, a discretionary meeting in a busy schedule Let's park it and pick it up once the grievance team have been back in contact with you. With respect to your aspirations to join the Erpt please don't ask again 51 of 108 until you are no longer adjusted. You must have full ppst, els and jrft. attendance mark policy and given the issues you cite with your WBA, until you have completed this. The MIST is busy and I'm not going to give a role which will cause you further pressures and issues in achieving your substantive rank. consider adjusted roles on the bcu and elsewhere as part of redeployment if there aren't any here.[122]This was the day that CI Smith sent his email to Insp Haver [254]. February 2023 - NPPF inspector exam[123]On 20 February 2023 the Claimant sent an email to Insp Vallance saying [263]: This was sent to Charlotte in your absence, I emailed them to ask to change it to yourself, however my Inspectors exam application hasn’t been approved yet. Can I please ask you to kindly look into this, as it’s time sensitive.[124]Insp Vallance replied the next day (21 February 2023) saying as follows (the text underlined was in red in the original email) [261-262]: I will not be able to support you in this application at the current time due to the following criteria that has not been met: - Admission to the examination is restricted to individuals who, by the date of the exam, meet the following eligibility criteria. Must have been confirmed in their appointment as a substantive sergeant* - You haven’t been signed off from your PS WBA as of yet, you have a little over 2 months to complete the outstanding work required. Must have had their line manager certify in their PDR for the last reporting year, that they are competent in their current rank – I am yet to receive your WBA PDR, I have requested this twice and have not had sight of it for the first 6 months of your probationary sgt period which should have been completed by Insp WEEDEN and then the remaining 6 months will be completed by myself. Must meet the MPS attendance management criteria – At this time your absence management does not meet the criteria, as stated in our last meeting you have had 4 periods of sickness totalling 52 days in a 52 of 108 rolling 12 month period. Must have no live written warning, final written warning or extended final written warning issued under the Police (Conduct) Regulations 2020 – This had not been requested by yourself or another line manager, I have now submitted this request on your behalf and await the outcome. Must have no disciplinary outcome of a reprimand within the previous 12 months, or a fine or reduction in rank within the previous 18 months, under the Police (Conduct) Regulations 2020. - This had not been requested by yourself or another line manager, I have now submitted this request on your behalf and await the outcome. For clarity, my rationale for not supporting this application at this time is that you sit outisde MPS sickness absence management policy, the earliest that this would reduce by a significant 32 days is 17/06/2023. I have to be honest Suzanne I am a little concerned in regards to your desire to sit the exam, in our most recent return to work meeting when we discussed a number of things including the progress of your WBA, you stated that you had to be mindful of how much work you completed outside of work. You also stated a desire not to over burden yourself, as that is what you felt caused you additional stress / anxiety , resulting in you being away from the work place for a month. By completing your WBA objectives whilst simultaneously studying for your Inspectors exam , my concern is that you may be again taking on too much which could negatively affect your wellbeing and ability to perform your role. You’ve also stated on a number of occasions that you wish to focus on your fitness in order to complete the JRFT and become operational, but struggle to find the time due to managing childcare and your WBA. Are you happy that adding a further demand of studying for your exam won’t add an additional pressure on you. I know that in the time I have been line managing you that you have been looking to leave RADT via a number of means, namely ERPT which was rejected as you are not fully operational, MetDet which wasn’t supported as you are tenured to the BCU for 2 years following your promotion, and you have now expressed an interest in moving to MiST which myself and Mr Smith will speak to you about on Thursday. You should also consider that if you was successful in moving to Mist, there is a whole new uplift of skills that you will need to become a master of, namely CONNECT, this on top of an exam and still trying to finish you WBA which will add even more of a further demand on you, whilst trying to juggle a very high volume of crimes and investigations. Ultimately you know what is best for you but I would ask you pause and think about how best to achieve your aspirations and I honestly think that focusing on getting your WBA completed should be first and foremost. 53 of 108 Once completed and signed off then you can look objectively at getting back to full fitness and open up other avenues for where you can move in the BCU. If a move is successful then whether you still decide promotion is the best route for you, you can plan and have adequate time to study and complete this. We can discuss this further on Thursday, but let me be clear, I absolutely do want to support you where I can in meeting your targets, objectives or goals.[125]This was the same day in which the Claimant Insp Vallance exchanged correspondence with respect to whether Insp Vallance had recorded their meeting of 11 January 2023.[126]The Claimant said that Insp Vallance tried to call the Claimant twice on her personal mobile on 21 February 2023 and that Insp Vallance phoned the office and texted the Claimant asking her to call to discuss staff. The Claimant and Insp Vallance did then speak and the Claimant then sent Insp Vallance the following email late that night [251]: Further to our telephone conversation and this email I will be seeking advice on this. However my initial comments are as follows :- You have been away on a long period of leave and I haven’t seen you since you have returned or been asked to account for any progress in my WBA since your extensive period of leave. Had I been asked about this, you would be aware that it is nearly completed and I have worked really hard. So this is more than doable in three months and the criteria states I have until the date of the exam to achieve this, which is on the 8th of May in 3 months’ time. As previously discussed my assessor confirmed that the PDRs do not need to be completed on the dates they are due, but can be backdated, as long as they are completed. I was advised to focus on the assignments first in my 3 month catch up with my assessor, which I have done and been guided by them. You were also on a period of extended leave until this week and I have sent this to you on your first set back. I have also not received my second PDR to fill in with objectives for my second PDR or shall I just fill in the relevant bits and you can add that on later? As my mental health related sickness is covered by the equality act and is considered a disability as per my OH report, can I confirm that HR have been asked about this? as per the attendance management policy. If that decision has come in consultation with them then would be good to know: Where an absence derives from or is directly related to a disability (as defined under the Equality Act 2010) or pregnancy related sickness or an injury in the execution of duty, line managers must obtain advice from 54 of 108 HR Case Management when considering whether an individual falls within the criteria. Re the disciplinary questions, this was not a requirement as part of the EOI to contact PSU, however I have no complaints or disciplinary matters pending which they will confirm. Appreciate that the reason for the rejection is my sickness, however you have also stated you have other concerns which have impacted the decision, which I will also address. If I had suffered with a broken arm which had healed, I very much doubt that would be used in consideration of me completing the Inspectors exam, so I don’t understand why depression is considering I have proven I am highly capable. I also don’t think it is appropriate bringing the fact that I am a working mother into it either. I have received no support at all since I have been on RADT, no concern for my workload being the only Sergeant covering three boroughs, so I am not sure why now I want to complete an exam there is now concern for the demands placed upon me when there hasn’t been previously. I have asked to leave RADT several times and there is an ongoing grievance about this, again I am not sure why that is being brought up as a reason to reject my Inspectors’ exam. I am simply seeking to develop myself further. I have been focusing on my fitness , attending the gym and classes and have noticed a marked improvement and will of course still be focusing on my fitness, as I always managed to before becoming ill and it will continue to be prioritised to get me back to full duties, as you know I am keen not to be indoors.[127]On 8 March 2023 Insp Vallance sent an email to the Respondent’s shared service team explaining the background and then saying [284]. At the beginning of the year, or maybe the very last part of December last year I received an e-mail from Jennie Moriarty in regards to attendance management regarding Suzanne due to her sickness. Excluding the periods of sickness that are not held to count she has had 4 periods of sickness totalling 52 days in the last 12 months. Suzanne has recently sent an EOI to sit the Inspectors exam this year, I have a number of concerns regarding supporting Suzanne but have stated that she does not meet the attendance management criteria. Suzanne has stated that her sickness is supported by the Disability and Equality Act, I have read the guidance on this and I do not believe that her sickness is in fact covered by this act, before I can reject her EOI the advice states that I must consult with HR to ascertain whether it does or does not, and that is the advice that I need. 55 of 108 The EOI on Oleeo specifically asks the officer submitting if they consider themselves to have a disability under this act, the answer that would have been entered by Suzanne is restricted data and therefore I cannot see whether she answered yes or no to that question, as at the time she would not have been aware that it would not be supported and therefore I am dubious as to whether now that I have stated she does not meet the criteria as per SOP’s whether she will log a grievance against me. Is there any way that that data would be able to be shared with a line manager? Any help or advice that you are able to give would be appreciated.[128]On 9 March 2023 Insp Vallance received a reply which said: Suzanne was placed on AD on 15/07/2022. The advice from OH in Jan 2023 was: While ultimately it is for a tribunal to determine whether an individual is considered to be disabled, in my opinion PS Suzanne Goldsmith is unlikely to be covered under the Act as they have a health condition which is not having a significant impact on her ability to undertake their normal daily activities. However, I would suggest, given she has been placed on AD this would be a reasonable indication she is suffering from a long term illness or condition. As a general rule of thumb, you would apply an additional 20- 25% sickness on the usual criteria as a reasonable adjustment. This would be 22 days, instead of 18 days in 3 years. Unlimited absence discounted as connected to a long term condition is not proportionate or reasonable.[129]Just prior to this, on 7 March 2023, the Claimant had been cc’d on an email from Met promotions to Ms Archer chasing a response by 13 March 2023. Ms Archer replied to, understandably, point out that this was a matter for Insp Vallance as the Claimant’s line manager [293]. The Claimant replied, sending Ms Archer Insp Vallance’s email of 21 February 2023 and saying “however I have asked for clarification that HR were consulted due to majority of my illness being disability related. I have had nothing back and am concerned with the deadline approaching myself, as I can’t even appeal it without it being ‘formerly rejected’. […]”. On 8 March 2023 Ms Archer asked the Claimant to withdraw her application and re-submit it with Insp Vallance as the authoriser [292]. There were other emails in this regard with the aim of Insp Vallance being registered on the Met Promotions systems as the Claimant’s line manager for the purposes of the Claimant’s application to sit the exams.[130]Met Promotions told the Claimant by email on 8 March 2023: Following on from your enquiry; candidates are asked the following - 56 of 108 The Met has an attendance management criteria for recruitment and promotion. To be eligible to apply you must have:• An average of six days absence or less per year, calculated over the last three years• No more than eleven separate absences during the last three years• No pattern of absence that causes your Line Manager a concern that you would not be able to provide regular attendance If you need further details on the attendance management criteria, please click the following link: […] Do you meet this criteria? If this is answered as ‘No’ the applicaiont will reject. However if the answer if correct to be ‘No’ we would advise you to link in with your manager to discuss the sickness as to confirm you meet the crietria the manager has to endorse the applicaiotn. Previouisly we used to ask for a Form 456 to be completed and as long as the reccoemndataionw as A or B we woulc allow the progress of the applicaiotn. We no longer ask for the form to be completed however the decision would still sit with the manager.[131]The Claimant replied the next day attaching her last three years’ sickness absence and confirmed that she had had eight periods of absence, two of which she believed to be disability related. She asserted that she “should not be prevented from promotion due to disability”. She concluded “As I fit the criteria can I be approved please?”.[132]On 9 March 2023, in response to an email from Met Promotions to Ms Archer confirming that her access to the Claimant’s application had been transferred to Insp Vallance, the Claimant wrote to Met Promotions and Ms Archer, copying Insp Vallance [291 286-287]: I have only seen this email after the one where I was asked to withdraw and reapply for admin purposes. I have withdrawn as per that guidance and now can’t reapply. I obviously have not changed my mind in wanting to do the Inspectors exam. I will try to speak to promotions tomorrow as they are closed now. They have also sent me the attached that they would put me through if I meet the not having 11 absences in 3 years criteria, I have 8 periods of sickness so am under and so would meet 57 of 108 eligibility, with two periods being in relation to disability absence.[133]As we explain in this judgment – this was a misreading by the Claimant of this email and the associated policy because she clearly did not meet the other attendance criteria.[134]On 10 March 2023 the Claimant sent a text message to Insp Vallance saying [575] “Hi Ma'am ive now sorted the inspector exam and its ready for your decision. I know your on rest days but deadline is the 12th if you can please kindly provide a decision on the Oleeo . Many thanks Suze”.[135]We accept that Insp Vallance had drafted the following email but forgot to send it and then did not realise that she had not sent it KVWS92 [335]: To: Goldsmith Suzanne - EA-CU Cc: Archer Charlotte V - EA-CU Subject: RE: Reminder - NPPF Inspector – Outstanding Oleeo actions - required by Monday 13 March 2023 The decision not to support your application is nothing to do with Charlotte, I have informed you why you are not being supported and as your line manager that decision was mine to make and to be honest Suzanne I think that it was quite unfair that you placed this decision making on Charlotte when you knew she was only covering me for one month due to a residential course. Because you sent this through to Charlotte whilst I was on my course she has had to reject it from her account based on my rationale. The decision absolutely does not sit with Charlotte and you do need to understand that and come to me with any issues, again it’s unfair for you to be sending things to her when I have informed you of the reason you are not being supported. Please do not send anything further to her in relation to this matter she has reverted to her former role, and one that does keep her very busy. I’m interested to know what element of your sickness you believe is eligible under the disability and equality act. I have read the Disability and Equality Act at length and have also consulted with HR regarding this matter, the act states the following: - ‘You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities’. 58 of 108 What ‘substantial’ and ‘long-term’ mean ‘substantial’ is more than minor or trivial, eg it takes much longer than it usually would to complete a daily task like getting dressed ‘long-term’ means 12 months or more, eg a breathing condition that develops as a result of a lung infection We have various meetings since I have been your line manager and as far as I can recall you have never raised any issues in regards to any ill health whether it be physical or otherwise that has impacted you in such a way, obviously if there is something that has not been disclosed previously then I would like to know so that you can be supported. However if that is not the case then I do not believe the period of sickness that you are referencing would meet the threshold above.[136]We consider that this would have been a reasonable email to send in the circumstances. Further, we accept Insp Vallance’s evidence at paragraphs 93- 95, the key points being that Insp Vallance was not on duty in East Area (she was in central London on preparatory work for the King’s Coronation and had limited opportunity to respond to the Claimant’s email and then when the Claimant chased her the following day on 10 March 2023 she was not on duty at EA and was on Central AID and had limited opportunity to respond to e-mails. As Insp Vallance did not work weekends she did not log on to her emails on either 11 or 12 March 2023. As we say, we further accept that Insp Vallance did not realise that she had not sent her draft email to the Claimant.[137]On 13 March 2023 Met Promotions wrote to the Claimant [295] to confirm that her application had been marked as not eligible for the exam because Insp Vallance had indicated that Claimant(i) was not substantive in rank as a sergeant (albeit the requirement was for the candidate, on or before the day of the inspectors' examination, to have completed the mandatory 12-month work based assessment and(ii) had not adhered to the attendance management policy. Annual leave process[138]On 23 February 2023 Insp Vallance sent her Sergeants, including the Claimant, details of a new process for requesting annual leave [272]. March 2023 – Claimant leaves work without telling Ms Warner[139]On 7 March 2023 the Claimant was on night duty and Insp Warner was EA400. The Claimant’s evidence was she let some Constables go home at about 5am because it was snowing. She had been nursing a migraine for several hours which then got worse. She was feeling so dreadful that she had to go home. She had not seen Insp Warner for some time and was not well enough to go and find her. 59 of 108[140]On 9 March 2023 Insp Warner sent the following email to Insp Vallance [288] in respect of what had happened on the night of 7 March 2023: […] It was quiet following a busy night of mispers. I returned to the ops room at 0530 hours to find everyone bar one, had gone. […] My main issue is that Suzanne decided to go and let the others go, leaving one of the newer officers to remain and hold the fort without even telling me out of courtesy. She has my number as she rang me the day before and could have called me on the radio. I know for a fact that if one of her PC’s turned up for work late or left for work without telling her, she would maintain professional standards of behaviour and deal with this appropriately and yet did not offer me the same courtesy of telling me she as the ‘leader & supervisor’ was going home early leaving one PC behind. I’m not sure if this is usual practice between her and other Inspectors but to go without saying anything is totally wrong in my books and personally I would feel very uncomfortable telling a PC that I was going him leaving him behind to effectively take the lead should anything have come in. I appreciate it was unlikely to pick up from 5am onwards but that’s not the point and not for her to just go whenever she likes, just my personal opinion and not how I like to work. I am currently dealing with [NAME] for issues Suzanne has raised with me about him not communicating with her about when he turns up for work and when he goes so it’s ironic that she has now done the same to me. I am told this is not the first time this has happened and is usal practice for C team RADT so I am bringing it to your attention[141]Insp Vallance replied to Insp Warner to thank her for bringing it to her attention. She noted that she was not aware of it being common practice but issues had been raised about the Claimant choosing to work from home without communicating it and not notifying the 400 when she was running late. She agreed that the Claimant should, out of courtesy, have come to see Insp Warner to ask if she would mind the Claimant leaving early.[142]On 21 April 2023 Insp Vallance was contacted by a PC Hill in respect of an MM1 that had been sent to her in respect of this complaint by Insp Warner [420]. She told Insp Vallance that another Inspector had decided that the MM1 could be dealt with by way of an RPRP because it was the first time that the Claimant’s time-keeping had been raised formally and the Claimant should comply and reflect on her position and the need to lead by example. An RPRP was recommended because it did not appear that if proven the MM1 would result in a written warning or final written warning.[143]The RPRP form was at [326] of the bundle. On the form it was noted that the Claimant’s position was that she: 60 of 108143.1 did not “have Insp Warner’s number saved and was unable to contact her via telephone but did not attempt to call her on the PR”.143.2 recognised that she should have made more effort to locate Insp Warner in order to seek authority to leave shift early;143.3 recognised that she made an error which was not deliberate or malicious.[144]On 23 April 2023 the Claimant sent an email to Insp Warner with an apology [581] that she would rather have given in person and in which she accepted that she had made a “massive error of judgement” and in which she commented that she had been worried about getting home in snow with a migraine. She pointed out that Insp Warner had not been about but that she should have tried to raise Insp Warner on the radio.[145]The Claimant was not in fact told about Insp Warner’s MM1 until 30 October 2023 [418-419] 27 March 2023 – Insp Vallance chastises the Claimant[146]On 24 March 2023 the Claimant sent the following email to all RADT supervisors [298-299]: Guys If I have put in one of my reviews that after such and such action a report can be closed, I don’t expect to find it being continued the following day i.e. [NAME] and [NAME] … (a class A using prostitute and a child who’s mum was given sole custody and not in contact with dad) you are entitled to disagree, if so please write your justification for doing so, but we really need to stop just blindly reporting and continuing to investigate people who don’t fit the profile of being a missing person.[147]On 27 March 2023 Insp Vallance sent the Claimant the following email [297-298] […] First of all let me address one observation of the tone in which this e-mail seems to read, obviously this is not the first time that I have had to address the tone of your e-mails but I have read this as someone not emotive to the situation but what I can say categorically is that this is not how you speak to your peers and colleagues and reading this objectively it comes across as abrupt and authoritarian which is not acceptable in the context outlined below and certainly not for officers the same rank as you. My concern Suzanne is that e-mails sent in the heat of the moment often do give away frustrations and by proxy come across in a way that leaves me concerned working relationships will deteriorate beyond repair and it is always beneficial for such relationships to remain amicable in order to discuss and resolve any issues. I have stated to you before that any issues you find when carrying out 61 of 108 your reviews should be addressed with the RADT Sgt themselves but where you know you will be seeing them I would suggest this is done in person or in a way that is respectful and doesn’t come across in a way that may leave a sour taste. Whilst I am well aware of the frustrations of RADT and the demands it places on you all what I would not want to see happen is for there to be a breakdown in communication between Sgts because of a perceived lack of respect of others decision making abilities, communication does not have to be confrontational and can be constructive if each party understands one another’s perspectives […] You will all work differently and also take different guidance leadership from your 400’s, that is the same as all teams that work overlapping shifts and there will always be differences of opinions, but in future I would like you to pause and think about the way in which you construct your e-mails and ensure that all fact finding has been completed in the first instance by asking questions as opposed to making demands. […] If you want to discuss this properly then let me know and I will see when our shifts next cross over and we can sit down and go through things properly. WBA sign off[148]On 4 April 2023 Insp Vallance sent the Claimant and email with feedback on her WBA PDR [302-303]. She started her email saying “I have had a read through the examples that you have provided and in order to give you the best opportunity of being awarded better scores for each competency I would advise that some examples are expanded on, I shall detail below”.[149]On 17 April 2023 the Claimant received provisional sign off on her WBA [315- 316]. 18 April 2023 – Insp Valance email to the Claimant re CARMS[150]On 18 April 2023 Insp Vallance sent the Claimant the following email in respect of notes that the Claimant had included on CARMS in respect of annual leave that the Claimant wanted to take [318-320 and 323]: Subject: Coronation day 06/05/2023 It has come to my attention that for the date of the 6th May 2023 you have marked your own CARM’s up with a note stating that you are A/L 62 of 108 and that Greg has line manager responsibility and supervision for RADT C. I have attached above my direction in regards to A/L that was sent to all RADT sgts in February this year, I have verified with the OSE that they have not received an A/L request from you so I have also attached the email chain you sent to an OSE member of staff (not the mailbox), this was requested by me in order to be able to fully address this, in your email you initially made enquiries regarding PC’s working on the Coronation day, Hilal has reiterated to you what you what my e-mail states in that if they are adjusted, non operational officers, then providing minimum strength is met it is your responsibility as to whether they work or not. However the way in which Sgts A/L is requested has not changed and your response asking if the same applied to you as you may get Greg to cover, is not sufficient to constitute a request for leave and nor does it follow the direction to CC myself into the request. I’m confused why you would ask if the same applied to you as you know that the process for Sgts leave is different and you have previously followed my direction, I have attached an example of this above for March 23. I also note that you had also shown Greg as team supervsion for the 5th and 7th May also, again correct procedures have not been followed. If you have sent a request to the OSE please could you forward this on to me because I have asked that all OSE mailboxes be checked to be as diligent in regards to this as possible, I also was not CC’d into any such request so I can only presume at this time that it was not sent, as they have stated that no request has been received and MO6 have not yet released the resources back to BCU officially I have asked that Greg’s ‘team supervision’ is removed and I have placed a note on CARM’s stating that your A/L not be approved until it is applied for following the process that I have asked all Sgts to follow. It may well be that you were intending to send the e-mail request and then subsequently did not get round to it, however I cannot see that there would have been any need to make any changes to CARM’s before authority was given as both yourself and Greg are NANO and everyone else is restricted so would not have been given any AID that would have abstracted them or you from your roles. However there are a number of events that are taking place in London across the Coronation weekend including JSO which is a massive resource demand so whilst your staff may not be abstracted in order to go out and about, what may well happen is that RADT teams with deployable sgts and staff may get stripped back and there may be a need for the OSE to move officers across teams in order to cover the shortfall left by MO6 as ERPT will also be stripped. Below are the screenshots of CARM’s. 63 of 108 Please ensure that correct processes are followed and I cannot stress the importance of CARM’s compiance and not marking your own CARM’s up, this is not the first time that I have reiterated my stance in regards to this to you and the other Sgts within RADT, because right now it appears to me that on this occasion you have chosen to circumnavigate correct processes and I’m not entirely sure why. I need to speak to you about a few things and planned on catching up with you next week so we will discuss this in person. […] Regards[151]The Claimant replied on 20 April 2023: I think there is some miscommunication here. Leave is currently in lockdown, so I was waiting for it to unlock before requesting it off, so I have added a note and placeholder for me and Greg for the time being and then was planning on sending a leave request once an email comes out to say it’s unlocked, H used to work for me so was a tongue in cheek email to a friend, I am not sure why you have requested it. It was [LL] who was marking up her own CARMS not myself, I have always requested leave in the appropriate manner and will continue to do so.[152]Insp Vallance replied the same day: I’m not sure why you are bring [LL] into this e-mail, please inform me if you think this is somehow pertinent to the issue I am raining below in regards to your actions? I don’t believe there has been any miscommunication, you note on CARM’s literally says ‘A/L Greg covering’. So please do not make any changes to CARM’s in order to facilitate your own A/L, Greg should not be shown as team supervision unless you’re A/L is authorised via the correct channels. If a note needs to be placed to state that you have requested A/L and it is awaiting authorisation and that should it be Greg will be acting up, then do that by all means. I thank you for your co-operation in this matter.[153]There was a meeting between Insp Vallance and the Claimant on 21 April 2023 regarding various topics. As regards regaining fitness, the MIST role and the CARMS issue the notes record [322-323]: Adjusted duties review 64 of 108 Suzanne’s plan moving forward Has been practising JRFT distance and process at home and in own time and increasing running levels. Is currently at level 4.5 with a level 3 warm up. Feels that she is largely recovered in terms of her depression and the reason why she went onto adjusted. Is hoping to have passed JRFT and OST/ELS by the time the adjusted duties review is due 15th Jul 2023• Contact OH and ascertain if Suzanne can revert to recoup or another status instead of adjusted to allow her that buffer should there be a delay in passing JRFT or attaining a OST / ELS date […]• Future career path if full operational duties attained. - 1 - A or C team but does not matter which site but preferably not JI If was to remain non-operational for a longer period of time than anticipated - MiST but would like to be consulted if possible prior to the LRPM in case she is close to completing the JRFT and then would not want to be tenured into another non-operational role for a year. A & C MiST.• CARM’s compliance Discussed and Suzanne has explained that there was no intent on changing her own CARM’s, states was an error due to tiredness in how she worded it and knows that she should have put ‘awaiting authorisation’ but forgot but will ensure it is done in future. Support with shift and childcare arrangements[154]At the end of April 2023 there was correspondence between the Claimant and Insp Vallance with respect to difficulties the Claimant had with juggling her shifts and childcare in light of a planned teachers’ strike on 2 May 2023 [330-331]. The Claimant’s first request was to ask for annual leave. On 29 April 2023 the Claimant was sent an email by EA Operations, copied to Insp Vallance, saying that her request for annual leave could not be granted because of staffing levels. EA were understanding of the difficulty and asked if the Claimant could finish at 1300 hours which they hoped would allow the Claimant to get home with the Claimant’s husband then coming in a little later than his 2pm start.[155]On Sunday 30 April 2023 [324/325] Insp Vallance sent a WhatsApp text or other similar message apologising for contacting the Claimant early on a rest day. She told the Claimant about a proposal by EA Operations for the Claimant to leave work at 13:00 so that she could get home and for the Claimant’s husband to then start a little later so that they could hand over childcare. Insp Vallance 65 of 108 proposed additional options whereby:155.1 the Claimant could take her children from her husband in the work canteen so that they could “see where mummy and daddy work”; or155.2 Insp Vallance could speak to a colleague to see if he could come in at 13:00 and work till 10.[156]Insp Vallance asked the Claimant her preference saying that she thought it would be easier to try to sort it out whilst they are a few days away from the strike day. The Claimant expressed gratitude and said that her husband would bring their child in so that the Claimant could leave at about 13:30 with her. Insp Vallance acknowledged her preference and said she would nonetheless speak to the colleague. She later confirmed that the colleague would come in at 13:00 to allow the Claimant to do a full handover. The Claimant was grateful. 9 May 2023 – rating given on Claimant’s PDR[157]On 9 May 2023, Insp Vallance providing a scoring/average PDR rating for the Claimant which we address more fully in our analysis and conclusions.[158]On 18 May 2023 the Claimant started early conciliation and ACAS issued their certificate on 22 May 2023 by letter. May reprimand in respect of workwear correspondence[159]At the end of May an Inspector Farr raised concerns with members of the RADT team as to the fact that they were wearing plain clothes in work.[160]On 23 May 2023 the Claimant and Insp Vallance exchanged the following WhatsApp messages: Insp Vallance to the Claimant Suze spoken to Darren. Not sure if there has been some miscommunication had yesterday in regards to todays stance in uniform. I will be sending an email out before there is a knock on affect, but can you inform the PC’s that as of tomorrows shift moving to forward their starting point is uniform. I am aware the boxroom gets unpleasant in the summer, we are not there yet. And therefore what people wear will be judged on a day-to-day shift by shift temperature basis. OR a coperate message from HQ is published EA wide because we are in a heatwave Darren is aware and in agreement. 66 of 108 I will send out a team wide email to catch this early or will end up with PCs thinking it’s plain clothes indefinitely just by observation and assumption. Can you make sure that the PCs know that playing close means smart casual it has never been short and certainly does not present a professional outlook for RADT Any issues I’m more than happy to have a chat. The shift isn’t too horrendous for you. Claimant to Insp Vallance Thanks Ma’am all disseminated, will be uniform here on out. I will ensure Mr Farr also makes you aware if he gives us directions on uniform again… Thank you [fingers crossed emoji] Insp Vallance to the Claimant thank you, I’m happy for Darren to make a decision on a day by day basis based on the temperature and welfare, if you want to ensure you get it in writing for your own benefit then I would never advise against that as it’s an accurate record regarding someone else’s directions. I will make my stance clear tomorrow in the disseminated email and CC the 400’s into it. Because ultimately the performance and conduct of the RADT rests on my shoulders Ultimately my issue was not their plain clothes but their choice of plain clothes on. Hope that makes sense Claimant to Insp Vallance No problem at all Ma’am thanks[161]On 23 May 2023 at 16:11 the Claimant sent the following message to members of the team [351] (the Claimant agreed in cross-examination that the reference to the Guvnor was to Insp Vallance): Subject: Uniform Dear all From tomorrow we will be back in uniform, I have voiced my anger about you being ripped into by the Guvnor… Mr Farr is going to address you all tomorrow with an apology I would hope. Going forward if EA400 says we can come in non- uniform (and I’m not 67 of 108 here) we will only do that if we a) get it in writing and b) it’s confirmed by the RADT Guvnor as well as EA400 and even then, I would say please bring in spare uniform. This will protect us from any criticism which should not be directed towards us. If any of you wish to raise how you were spoken to today, then please email Mr Smith.[162]On 23 May 2023 at 17:30 CI Smith understandably sent the Claimant the following email: Subject: Fwd: Uniform I am struggling to believe that you have sent this email to the team If you have concerns about how Kate has spoken to you then I would expect you to raise them with her directly, but away from the PCs and then if the matter is not resolved to your satisfaction, you should come to me There has always been a tension between the 400 and radt Insp, and we should all be trying to work together for the greater good. I am afraid I deeply uncomfortable with the language used here and it is disappointing to come from a supervisor, expecially one who has aspirations of becoming an A/Inspector on the BCU. If you wish to raise concerns to me about how this afternoon has happened then you can speak to me tomorrow at Ilford, but I will ask you reconsider the wisdom of sending the below message, when we speak[163]The Claimant replied that evening to say: Sir I have reflected on my email and I am really very sorry, there is some context to my email, I have no issues with Ma’am, Ma’am was pleasant to me and I do not wish to raise anything to you. I wasn’t privy to any conversations between Ma’am and my officers, several officers have raised an interaction with Ma’am today and concerns about Mr Farr’s direction leading to them being told off, therefore I directed them to yourself if they wished to discuss it. I completely understand that I should have worded the email differently , it wasn’t intended to be a formal email but a quick follow up to an earlier conversation, letting them know that Mr Farr accepted responsibility for the issue and will address them tomorrow. I will ensure this never happens again, every day is a learning day and I am so sorry. 68 of 108[164]The following morning CI Smith replied [349] at 8:55 on 24 May 2023: Apology accepted but I think you need to address this with Kate directly. I appreciate this wil be uncomfortable but I am a firm believer in put ones hand up and then moving on. Whatever differences you have with her, these must never be displayed in public in such a manner. You both have an important role in leading PCs and managing risk, this has undermined our mission Given that you did not hear the interaction between Kate and the PCs, it makes the content of your email even more bizarre. We also need to give serious thought to how we correct this with the PCs from yesterday. In the same way I don't want Kate undermined- as she was yesterday- I don't want to do the same to you, but... ●That email needs to be corrected ● [PC name] and the others need to be told the shorts aren't acceptable . He has emailed me and I will respond to him this afternoon ●Whatever the confusion / misunderstanding between you Darren and Kate, Kate is absolutely supported in enforcing the mps non uniform policy.[165]The Claimant replied to CI Smith to say that she appreciated his email, would rectify the situation and speak with Insp Vallance and her officers. She promised not to repeat her actions.[166]That night, 24 May 2023 at 21:50 the Claimant sent Insp Vallance a full apology [355] attaching her correspondence with CI Smith and the original offending email.[167]Insp Vallance had not at that point seen the offending email and said in her reply to the Claimant of 25 May 2023 at 12:25 [354] that, had she seen the Claimant’s email to her team before the Claimant’s apology, she would have been very angry and disappointed. However, Insp Vallance made clear that she was pleased with how the Claimant had remedied the situation, had had the ability to reflect and appreciate the consequences of her actions from different angles and admit when a mistake had been made. Insp Vallance said that she was sorry if she herself had appeared to blame the Claimant and pointed out that in her text message to the Claimant she had intended to make clear that, whilst she was ‘miffed’ at Insp Farr’s direction, she was more concerned about the type of casual dress that the officers had chosen to wear. She closed her email acknowledging that previous conversations between her and the Claimant might not have gone how they had each wanted she thought that she and the Claimant had a better understanding of the other’s character now. She made clear to the Claimant that she was always open to conversation even if her “face does not display that”. She said she was happy to draw a line under it and move on and 69 of 108 made clear that there would be no hostilities from her part and that she had trust in the Claimant. The Claimant acknowledged Insp Vallance’s ‘gracious response’. CI Smith also said in an email on 26 May 2023 [354] ‘Line drawn. Let’s move on. Enjoy Rds’. Rds are a reference to rest days.[168]We note here that in the Claimant’s WBA/PDR, on 13 June 2023, CI Smith included the following comment (our emphasis added and which the Claimant accepted was a reference to this May 2023 error on the part of the Claimant) [380]: This is first occasion that I have seen the PDR since becoming Suzanne’s 2nd LM in January 2022. Suzanne clearly has much to offer the organisation and there is a breadth and depth of evidence which has been offered and endorsed by both Insp Weeden and Vallance. Suzanne has made it clear her wish to work in another role, particularly on a Response Team. Suzanne understands her status as an adjusted officer and not holding a pass in the JRFT is the only barrier for her achieving this. I was recently really impressed with a humble and mature response to an issue that occurred on Suzanne’s team, and her relationship with her PCs and Insp Vallance. If this is the default approach to recovering situations and dealing with them in a more constructive fashion, Suzanne will hopefully be able to deliver on her potential.[169]In her witness statement [CWS190 – 191], and for the first time, Claimant made serious allegations that on 24 May 2023 CI Smith asked the Claimant for a meeting and the Claimant found him in a meeting room which was out of the way and not very visible. She alleged that CI Smith then reprimanded her in a severe way and alleged that he took pleasure in intimidating her as a woman and seemed to relish it even more when she began to cry. The Claimant said she had been scared. At page 582 of the bundle we were taken to a text message from the Claimant to CI Smith at 12:03 saying “Hello Sir are u free, if so let me know where ur sat and ill come find you many thanks Suzanne”. The Claimant said she found CI Smith around 20 minutes after sending that message. The Claimant accepted that she had spoken to CI Smith before she had sent Insp Vallance her apology late that evening on 24 May 2023. We consider that the Claimant is mistaken in the serious allegations she made against CI Smith in her witness statement. This meeting with CI Smith occurred not long before the Claimant submitted her claim. The Claimant had previously demonstrated her willingness to raise allegations of misogyny with her employer and yet she did not raise or allude to the serious allegations in any contemporaneous documents. They had not, before she prepared her witness statement, formed any part of her claim. PDR[170]On 22 May 2023 Insp Vallance sent the Claimant’s PDR to CI Smith for sign off [359]. On 13 June 2023 CI Smith confirmed that he supported the Claimant’s 70 of 108 PDR and sent it on [363, 367-381]. The PDR document gives a manager the opportunity to apply a rating to each of the six competencies of between one and five with five being the worst/lowest score and one being the best/highest score. We accept that confusion arose in the mind of Insp Vallance because when it comes to promotion scoring five represents the best/highest score and one represents the lowest/worst score. Insp Vallance had scored the Claimant in her PDR a mix of 3s and 4s. We accept that Insp Vallance, in doing so believed that this was indicative of the Claimant performing above the expected standard. It was not until December 2023, when completing another Sergeant’s WBA PDR, that Insp Vallance realised that she had made a mistake in the Claimant’s PDR. She had scored the Claimant with a four on two competencies when she had intended to give the Claimant the higher rating of two. We accept that this mistake did not change the Claimant’s overall rating of three.[171]On 20 June 2023 regrettably the Claimant commenced sick leave after she experienced a relapse in her depression. The Claimant submitted her ET1 to the Tribunal on 22 June 2023. She was able to return to work on 22 August 2023. THE LAW Discrimination under the EqA
THE LAW
[172]The Equality Act 2010 (EqA) protects employees and applicants for employment from discrimination based on or related to a number of ‘protected characteristics’ (section 4). These include disability (section 6) and sex (section 11).[173]The Respondent is the Commissioner of Police of the Force and by virtue of s.42 Equality Act 2010 is deemed to be the Claimant’s employer for the purposes of these proceedings in respect of any act done by him or by others for whom he is in law responsible, in relation to the Claimant. Discrimination arising from disability - section 15 EqA[174]Section 15 EqA provides: “(1) A person(a) (A) discriminates against a disabled person(b) (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”.[175]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor [2019] ICR 230 held that it is first necessary to identify the relevant treatment and it must then be considered whether it was unfavourable to the Claimant.[176]The Court said that little was likely to be gained by differentiating unfavourable treatment from analogous concepts such as “detriment” found elsewhere in the Act, referring to a relatively low threshold of disadvantage being needed. One 71 of 108 could answer the question by asking whether the Claimant was in as good a position as others.[177]What caused the unfavourable treatment requires consideration of the mind(s) of alleged discriminator(s) and thus that the reason which is said to arise from disability be more than just the context for the unfavourable treatment. There need only be a loose connection between the unfavourable treatment and the alleged reason for it, and it need not be the sole or main cause of the treatment, though the reason must operate on the alleged discriminators’ conscious or unconscious thought processes to a significant extent (Charlesworth v Dronsfield Engineering UKEAT/0197/16).[178]By analogy with Igen, “significant” in this context must mean more than trivial. Whether the reason for the treatment was “something arising in consequence of the Claimant’s disability” could describe a range of causal links and is an objective question, not requiring an examination of the alleged discriminator’s thought processes.[179]Simler P in Pnaiser v NHS England [2016] IRLR 170, EAT, at [31], gave the following guidance as to the correct approach to a claim under section 15 EqA: '(a) 'A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises. (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely, to provide protection in cases where the consequence or effects of a disability lead 72 of 108 to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton UKEAT/0149/14, [2015] All ER (D) 284 (Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) There is a difference between the two stages – the “because of” stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the “something arising in consequence” stage involving consideration of whether (as a matter of fact rather than belief) the “something” was a consequence of the disability. (h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the “something” leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.''[180]The Respondent directed us to Simler P in Sheikholeslami v University of Edinburgh [2018] IRLR 1090, EAT: ''the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an 73 of 108 (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind 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 then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”[181]The burden of establishing a proportionate means defence is on the Respondent. When assessing whether the treatment in question was a proportionate means of achieving a legitimate aim, the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own objective assessment of whether the former outweigh the latter. There is no 'range of reasonable response' test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.[182]In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 it was said, approving Mummery LJ in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, that what is required is: first, a real need on the part of the Respondent; secondly, that what it did was appropriate – that is rationally connected – to achieving its objectives; and thirdly, that it was no more than was necessary to that end.[183]It is also appropriate to ask whether a lesser measure could have achieved the employer’s aim – Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice [2017] UKSC 27.[184]We were also referred to HHJ Auerbach in Stott v Ralli Ltd [2022] IRLR 148: “The tribunal should in principle follow the general approach outlined in Allonby and numerous other authorities, in particular by weighing the employer's justification against the discriminatory impact. To do that, it must engage in what is called critical scrutiny, considering whether the means correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question, and are necessary to that end. While the test is an objective one and not a band of reasonable responses test, the authorities also establish that the test as to whether the measure is 'necessary' does not mean that the employer must show that it was the only course open to it in order to achieve its aim. It effectively means 'reasonably necessary', as judged by the tribunal.”[185]A complaint of discrimination arising from disability will also be defeated if the Respondent can show that at the time of the unfavourable treatment, it did not know and could not reasonably be expected to know that the Claimant was a disabled person. 74 of 108 Reasonable Adjustments[186]By section 39 (5) EqA a duty to make adjustments applies to an employer. By section 21 EqA a person who fails to comply with a duty on him to make adjustments in respect of a disabled person discriminates against the disabled person.[187]Section 20(3) EqA provides that there is a requirement on an employer, where a provision, criterion or practice of the employer 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.[188]Under s.20(5) EqA the obligation to make reasonable adjustments with regard to an auxiliary aid is set out as follows: ‘The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid’[189]Section 21 of the Equality Act provides that an employer discriminates against a disabled person if it fails to comply with a duty to make reasonable adjustments. This duty necessarily involves the disabled person being more favourably treated than in recognition of their special needs.[190]The duty to make reasonable adjustments only arises where the employer has knowledge (actual or constructive) that its employee is disabled and likely to be placed at a substantial disadvantage as (Paragraph 20 (1)(b) Schedule 8 of the Equality Act 2010).[191]In Environment Agency v Rowan 2008 ICR 218 and General Dynamics Information Technology Ltd v Carranza 2015 IRLR 4 the EAT gave general guidance on the approach to be taken in reasonable adjustment claims. A tribunal must first identify:191.1 the PCP applied by or on behalf of the employer191.2 the identity of non-disabled comparators;191.3 the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with the comparators.[192]Once these matters have been identified then the tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified. The issue is whether the employer had made reasonable adjustments as matter of fact, not whether it failed to consider them.[193]The phrase PCP is interpreted broadly. The EHRC Code of Practice on Employment (2011) (“the Code”) says at paragraph 6.10: 75 of 108 “[It] should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.”[194]The Code goes on to provide at Paragraph 6.24, that “there is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask); At paragraph 6.37, that Access to Work does not diminish or reduce any of the employer’s responsibilities under the 2010 Act. At paragraph 6.28 the factors which might be taken into account when deciding if a step is a reasonable one to take: Whether taking any particular steps would be effective in preventing the substantial disadvantage; The practicability of the step; The financial and other costs of making the adjustment and the extent of any disruption caused; The extent of the employer's financial or other resources; The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.[195]In Lamb v The Business Academy Bexley EAT 0226/15 the EAT commented that the term “PCP” is to be construed broadly “having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability”.[196]It is also generally unhelpful to distinguish between “provisions”, “criteria” and “practices”: Harrod v Chief Constable of West Midlands Police [2017] ICR 869.[197]There is no formal requirement that the PCP actually be applied to the disabled Claimant. The EAT said in Roberts v North West Ambulance Service [2012] ICR D14 that a PCP (in this case, hot desking) applied to others might still put the Claimant at a substantial disadvantage.[198]There are some limits to what can constitute a PCP. In particular there has to be an element of repetition, actual or potential. A genuine one off decision which was not the application of policy is unlikely to be a “practice”: Nottingham City Transport Ltd v Harvey [2013] All ER(D) 267 (Feb), EAT. In that case the one- off application of a flawed disciplinary process to the Claimant was not a PCP. There was no evidence to show that the employer routinely conducted its disciplinary procedures in that way.[199]In Ishola v Transport for London [2020] ICR 1204 the Court of Appeal said that all three words “provision”, “criterion” and “practice” “..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.”[200]The test of reasonableness imports an objective standard. The tribunal must examine the issue not just from the perspective of the Claimant, but also take into account wider implications including the operational objectives of the employer. 76 of 108[201]We were reminded of the EHRC Code of Practice on Employment at para 6.28 lists factors which might be taken into account when deciding if a step is a reasonable one to take:• “whether taking any particular steps would be effective in preventing the substantial disadvantage;• the practicability of the step;• the financial and other costs of making the adjustment and the extent of any disruption caused;• the extent of the employer's financial or other resources;• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and• the type and size of the employer.''[202]We were reminded that:202.1 The test of reasonableness imports and objective standard;202.2 The ET must consider however not only the position of the employee, but also the wider operational objectives of the employer; see Weaver v Chief Constable of Lincolnshire Police [2008] All ER (D) 291.202.3 Where the adjustment contended for requires the disapplication of an essential requirement of the role, it will not be reasonable; Wade v Sheffield Hallam University UKEAT 0194/12.202.4 In Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 the CA held that where an attendance management policy had put a disabled employee at a substantial disadvantage, there was a duty to make reasonable adjustments. On the facts of that case the claimant had sought for a period of absence eight times longer than the permitted annual absence before the consideration point was reached, and the CA held that the ET’s finding that such an adjustment had not been reasonable had “plainly been open to it”. Elias LJ observed at para 76: “In this context I would observe that it is unfortunate that absence policies often use the language of warnings and sanctions which makes them sound disciplinary in nature. This suggests that the employee has in some sense been culpable. That is manifestly not the situation here, and will generally not be the case, at least where the absence is genuine, as no doubt it usually will be. But an employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee's absences any longer. There is nothing unreasonable, it seems to me, in the employer being entitled to have regard to the whole of the employee's absence record when making that decision…” 77 of 108[203]It is not necessary to prove that the potential adjustment will remove the disadvantage; if there is a “real prospect” that it will, the adjustment may be reasonable. In Romec v Rudham [2007] All ER (D) 206 (Jul), EAT: HHJ Peter Clark said that it was unnecessary to be able to give a definitive answer to the question of the extent to which the adjustment would remove the disadvantage. If there was a 'real prospect' of removing the disadvantage it 'may be reasonable'. In Cumbria Probation Board v Collingwood [2008] All ER (D) 04 (Sep), EAT: HHJ McMullen said that 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'. In Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, [2011] EqLR 1075, the EAT said that, when considering whether an adjustment is reasonable, it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage.[204]Schedule 8 EqA (Work: Reasonable Adjustments) - Part 3 limitations on the duty provides: S. 20. Lack of knowledge of disability, etc (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. Under Part 2 and an interested disabled person includes in relation to Employment by A, an employee of A’s.[205]If relied upon, the burden is on the Respondent to prove it did not have the necessary knowledge. The Respondent must show that it did not have actual knowledge of both the disability and the substantial disadvantage and also that it could not be reasonably have been expected to know of both the disability and the substantial disadvantage. Victimisation[206]Section 27 EqA provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.” 78 of 108[207]The starting point is that there must be a clear allegation amounting to a protected act. Therefore an allegation that something might be discriminatory rather than is actually discriminatory, will not be sufficient Chalmers v Airpoint Limited and Others UKEAT/0031/19.[208]In addition, if what the issue alleged by Claimant as amounting to a breach of the EqA would not be unlawful under the EqA, then it cannot be a protected act for example see Waters v Metropolitan Police Comr [1997] IRLR 589.[209]We were taken to:209.1 Langstaff P in Durrani v London Borough of Ealing UKEAT/0454/2012: “there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies. We accept the Respondent’s submission that in that case the complaint being made was not of discrimination, but of unfair treatment generally and the ET had not erred in finding that was not a protected act.209.2 Chalmers v Airpoint Ltd UKEAT 0031/19 in which the EAT upheld the ET’s decision that an employee’s comment in her grievance that the employer’s actions “may amount to discrimination”, and she had also not mentioned ‘sex’ was insufficient to be a protected act.[210]The employee must be subjected to a detriment, which has been decided to mean placed at a disadvantage Williams v Trustees of Swansea University Pension and Assurance Scheme and anor [2019] ICR 230. Unfavourable or less favourable treatment arguments are not in accordance with the correct statutory wording of section 27. Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL. Therefore, for detriment to be proven, it is for the Claimant to show that they were or would have been, in their subjective view, placed at a disadvantage and that it was objectively reasonable for them to have held that view.[211]Detrimental treatment of a Claimant will not be because of a protected act if the detrimental treatment is caused by the way in which the protected act is done or the behaviour of the Claimant whilst communicating the protected act or gathering information for it. For example see Woods v Pasab Limited [2012] EWCA Civ 1578 and Martin v Devonshire Solicitors [2011] ICR 352.[212]The detriment relied upon by the Claimant, must be linked to the protected act. The same test for causation in direct discrimination, is therefore relevant to victimisation because the statutory wording is the same.[213]The Respondent reminded us that a detriment cannot be found to have been because of a protected act if there is no evidence that the person who allegedly inflicted the detriment knew about the protected act. It pointed to the Court of Appeal decision in Scott v London Borough of Hillingdon [2001] EWCA Civ 2005 which held that knowledge of a protected act is a precondition of a finding of victimisation. We accept the Respondent’s submissions that: 79 of 108213.1 In that case there was no positive evidence that the decision maker knew of a previous complaint of discrimination, and therefore no basis for a finding of victimisation.213.2 The knowledge of one person in an organisation of a protected act cannot be attributed to another; the protected act must operate on the mind of the decision maker: Peninsula Business Services Ltd v Baker [2017] ICR 714, EAT. Harassment (sex and disability)[214]Section 40 of the EqA renders harassment of an employee unlawful.[215]Section 26 EqA 2010 provides: (1) A person (A) harasses another (B) if- A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of - violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— the perception of B; the other circumstances of the case; whether it is reasonable for the conduct to have that effect.[216]Richmond Pharmacology Ltd v. Dhaliwal [2009] IRLR 336 makes clear that while it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct related to other protected characteristics), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. ANALYSIS AND CONCLUSIONS[217]Have any of the claims relating to acts relied upon by the Claimant been submitted out of time such that the act or omission relied upon is not part of a continuing act and is out of time? The Claimant’s claims are prima facie out of time; the primary limitation period lapsed on 19 February 2023. LOI 3 Victimisation Protected act[218]The Claimant alleges that in submitting her formal grievance on 24 November 2022 she did a protected act pursuant to Section 27 EqA.[219]She submitted that she was raising a complaint that asserted facts which were capable of amounting in law to an allegation of discrimination. She specifically pointed to the following:219.1 She has depression and believed she had a disability [435] (disability);219.2 She pointed to not being allowed to transfer to ERT without her JRFT and PPST [433] which she said was a PCP. 80 of 108219.3 The Claimant needed to lose weight and get fit (side effects of depression) [436] which was a substantial disadvantage; and219.4 The Claimant wanted to transfer to ERT with defensive PPST and a risk assessment (an adjustment that she contended was a reasonable adjustment) [434].[220]We also took into account her other submissions and what she said she wanted from the grievance which she summarised as follows: I would like a review into the fairness as to why a tenure was implemented for myself and no other Sergeants and any documentation surrounding the boroughs policy into this tenure I would like a review into the fairness as to why it has been deemed that [Officer A] is fit to go to team with defensive PPST but I am not and I have been told it is extremely unlikely I will be until I have full PPST If the defensive PPST definition states I can go out and conduct routine enquiries and be out and about, why is this being disregarded and I am being kept in an office on the grounds that that is insufficient I would like equal treatment, if it has been deemed that another person can go to team as a Sergeant with only defensive PPST and the same restrictions as myself. I should be given the opportunity to also go to response team and man up response team for overtime, so that my earning potential is not hindered, likewise my development and ultimately my career.[221]We conclude that the Claimant’s grievance did not amount to a protected act but, because we consider that the statutory threshold is rightly low for protected acts, we have nonetheless gone on to decide whether we consider that the Claimant was subjected to the alleged detriments because she had raised her grievance. We conclude that in submitting her grievance, the Claimant did not do “any other thing” for the purposes of or in connection with the EqA or making an allegation (whether express or not) that a person has contravened EqA because:221.1 Whilst raising a perceive unfairness in not being offered a transfer out of RADT, she did not sufficiently correlate this with her disability (or any other protected characteristic);221.2 It is not necessary for the Claimant to tick any of the discrimination boxes in order for the grievance to have amounted to a protected act. However, the fact that she did not, and could quite easily have done so, is relevant to the analysis. We consider that it is too big a step, given what she said in the grievance, to conclude that she was complaining about unlawful discrimination under the EqA. 81 of 108221.3 She alleges nepotism[435] but not unfair treatment linked to a protected characteristic (Officer A had physical and mental health issues but was only transferred to ERPT once they had completed their PPST and JRFT. Officer A and Officer B’s transfer was Respondent driven). We accept the Respondent’s submission that she was not complaining about being discriminated against as a disabled officer, she was comparing herself against another disabled officer (Officer A) in highlighting perceived unfairness.221.4 Whilst also not strictly relevant to the analysis of what she did at the time it is noteworthy that she subsequently, in February 2023, felt very able to allege “misogyn[y] and discrimination because of mental health” [258].[222]We accept the Respondent’s submissions that:222.1 It is of note that when the Claimant summarised her grievance to Caroline Clarke on 22 February 2023 in the first bullet point on [270], she describes the complaint as being about failure to receive “fair treatment” – confirming that this was comparing herself to Sergeant A. In that same document the penultimate bullet point she alleges misogyny and discrimination. If she thought that her grievance also contained allegations of discrimination, there is no reason she could not have so described it in this document where she is clearly not afraid of alleging discrimination.222.2 When she was interviewed by Insp Harver she did not describe her complaint in any other way [235 – 236].222.3 Both of the complaints as defined by agreement with the Claimant, were upheld by Insp Haver [403]. Did CI Smith and I Vallance know about the alleged protected act?[223]We have found that there was no protected act. However, even if the grievance was a protected act we do not consider that either CI Smith or Insp Vallance knew sufficient detail of the grievance to believe that the Claimant had done or may do a protected act. Neither of them were provided with a copy of the grievance. They knew that she wanted to leave RADT (she had been making that clear for quite some time already. They also knew that she perceived an unfairness in her treatment as against others but not that she perceived the unfairness to amount to any sort of breach of the EqA. They understood the complaint to just be about a question of fairness (not illegality under the EqA).[224]Inspector Quereshi (Informal Resolution Champion) asked the Claimant for permission to share a summary of the grievance with Insp Vallance and CI Smith [184].224.1 His only communication with Insp Vallance was to tell her that informal resolution had been unsuccessful [185]. Insp Vallance found out about the grievance on 19 December 2022 [185].224.2 CI Smith knew about the grievance before Insp Vallance [181] and he and Insp Quereshi met about the grievance. CI Smith then sent an email to 82 of 108 Insp Quereshi saying “the comparison with the other officer is disingenuous”, concluding that “Suzanne is frankly asking for something that is not possible […] the decision not to let her out on the street will not be changed until she has the green light from OH.”[225]Insp Vallance and CI Smith were simply told by Insp Haver (who was investigating the grievance) that it was a question of fairness [274 and 278]. Detriment – Covert Recording[226]We find that Insp Vallance, on 11 January 2023, did know that the Claimant had raised a grievance but not the content of the grievance. We find, on the balance of probabilities that she would have expected it to raise the unfairness that Insp Vallance knew the Claimant perceived in her own treatment as against that of Officer A and Officer B.[227]Taking into account that we have not accepted Insp Vallance’s account of how the notes of the 11 January 2023 meeting were created, we do not consider it probable that Insp Vallance used Automated Capture because of the alleged protected act. We accept that she did so for expediency and because there had been confusion arising from a meeting between her and the Claimant after a meeting in November. Insp Vallance could have treated the Claimant more severely with respect to the CARMS issue and her email to her team on the workwear issue in May 2023 (all of which occurred after the Claimant raised her grievance) but chose not to do so. She had also decided, at the meeting on 11 January 2023, not to initiate informal attendance management with the Claimant.[228]A manager using Automated Capture in a discussion at a meeting with an employee could certainly amount to a detriment under Section 27 EqA. If we are wrong and Insp Vallance used Automated Capture because of a protected act by the Claimant, we do not however consider that it amounted to a detriment in the circumstances of this claim:228.1 Automated Capture was not used maliciously or to entrap the Claimant.228.2 The planned topics for discussion at the meeting were not controversial nor was what was actually discussed or said and the Claimant did not at the time and has not since asserted that the notes misrepresent what was said at the meeting.228.3 Whilst Insp Vallance used Automated Capture without the Claimant’s knowledge at the time, she was then transparent with the Claimant in sending her the transcript.228.4 The Claimant does not allege that it was Insp Vallance’s denial of the use of Automated Capture that amounted to a detriment (which might have been something that would undermine trust in other circumstances).228.5 There was no evidence that the Claimant’s trust in Insp Vallance was then eroded by what she considered had happened. She raised it with Caroline Clark (the grievance single point of contact) but did not add it to her 83 of 108 grievance [267-270]. The Claimant, as she had said to Insp Vallance in her email, told Ms Clark that she thought that she had been sent a transcript like a suspect would be after interview. It did read like an interview transcript but it did not otherwise draw any comparison with the interview of a suspect to a crime.228.6 The Claimant was cross-examined extensively on why it would have been a detriment on this occasion to be covertly recorded and the Claimant was only able to point to her contention that it was without consent. She could not identify an element of the notes that she disagreed with or which was a detriment. In her witness statement the Claimant made the serious allegation that Insp Vallance was known for using covert recording. That allegation was not substantiated and there had been no such formal allegation against Insp Vallance [CWS102 and [508]].[229]Accordingly this complaint is not well founded and is dismissed. Detriment – Goodmayes Project[230]The Claimant complained that on 13 February 2023 Insp Vallance, as an act of unlawful victimisation for having raised her grievance, removed the Claimant from what she described as the Goodmayes Project.[231]We have found that the Claimant’s grievance was not a protected act, but we in any event find that if we are wrong, Insp Vallance’s actions as regards Goodmayes were not influenced by the fact that the Claimant had raised her grievance (protected act or not).[232]We accept the reasons given by Insp Vallance for her decisions. In particular we accept the Respondent’s position that the Claimant wanted to go to a meeting with Goodmayes and was invited to a monthly meeting (it was not a Goodmayes Project as such) which the Mental Health Team had in place [228 – 225].[233]A meeting was due to take place on 16 February 2023 but that was a rest day for the Claimant and she wanted a day off in lieu in order to go. On 10 February 2023 the Claimant in fact stated that she was unable to attend on 16 February 2023 [231-232].[234]Insp Vallance did not remove the Claimant from the monthly meetings and we accept that it was more appropriate for Insp Vallance to attend in any event, given the broader oversight she had compared to the Claimant. We accept that it would have been a duplication of effort to send a RADT team member to the meetings after 16 February 2023.[235]Insp Vallance was not critical of the Claimant suggesting it and, as the Respondent submitted, she concluded her email to the Claimant by saying “please do continue to monitor and make myself and Kez aware of any common themes again in the circs of someone going missing.”[236]Accordingly this complaint is not well founded and is dismissed. 84 of 108 Detriment – 21 February 2023 – Insp Vallance blocking NPPF inspector exams[237]The Claimant complained that, on or about 21 February 2023, Insp Vallance blocked the Claimant’s request to sit the NPPF Inspector’s exams, as an act of unlawful victimisation for having raised her grievance.[238]We have found that the Claimant’s grievance was not a protected act, but we in any event find that if we are wrong, Insp Vallance’s actions as regards the Claimant’s desire to sit the NPPF exams were not influenced by the fact that the Claimant had raised her grievance (protected act or not).[239]We accept Insp Vallance’s evidence that the reason for not supporting the Claimant’s wish to sit the exams was that, at that time, the Claimant sat outside the Respondent’s sickness absence management policy and the earliest that the Claimant’s attendance might reduce by 32 days would be 17 June 2023 [252]. Insp Vallance contacted HR about discounting the Claimant’s absence after this point, 8 March 2023 [284]. Insp Vallance had not therefore, at 21 February 2023, had confirmation from HR that the absence to be taken into account for measuring the Claimant’s attendance against the policy could not be reduced sufficiently. Nonetheless we find that the reason she gave was the reason she had for not putting the Claimant forward for the exams. Her reasoning was not tainted by the fact that the Claimant had raised her grievance (protected act or not). The Claimant in any event, and as we have explained, misunderstood the attendance management criteria for promotion and maintained, in the face of reason, an unsustainable interpretation of the provisions.[240]Accordingly this complaint is not well founded and is dismissed. Detriment – 10 March 2023 Insp Vallance refusing to review and assist in application for NPPF[241]The Claimant further complained that, on 10 March 2023, Insp Vallance refused to assist in the Claimant’s application for the NPPF Inspector’s exams, as an act of unlawful victimisation for having raised her grievance.[242]We have found that the Claimant’s grievance was not a protected act, but we in any event find that if we are wrong, Insp Vallance’s actions up to and including 10 March 2023 were not influenced by the fact that the Claimant had raised her grievance (protected act or not). We accept Insp Vallance’s evidence as set out in our findings of fact explaining the reasons why she did not respond to the Claimant over the period alleged on this topic (and the Claimant having unreasonably put Ms Archer down as her line manager in the system). As set out above, Insp Vallance had also reasonably concluded that the Claimant did not meet the attendance criteria for applying for promotion and taking the NPPF exams.[243]Accordingly this complaint is not well founded and is dismissed. 85 of 108 Detriment – CI Smith refusing the transfer request to MIST[244]The Claimant complained that, on 22 February 2023, CI Smith refused the Claimant’s request to transfer to MIST, as an act of unlawful victimisation for having raised her grievance.[245]We have found that the Claimant’s grievance was not a protected act, but we in any event find that if we are wrong, CI Smith’s actions as regards the Claimant’s desire to transfer to MIST were not influenced by the fact that the Claimant had raised her grievance.[246]CI Smith changed his position on this from 21 February 2023 to 22 February 2023. On 21 February 2023 he said “we can absolutely support a move to MIST, I’m only surprised as I am certain you previously did not want this.” [247].[247]On 22 February 2023 he said [258]: attendance mark policy and given the issues you cite with your WBA, until you have completed this. The MIST is busy and I'm not going to give a role which will cause you further pressures and issues in achieving your substantive rank. consider adjusted roles on the bcu and elsewhere as part of redeployment if there aren't any here.[248]We address this further in respect of the Claimant’s Section 15 EqA and Section 20/21 EqA claims but are clear that the reason CI Smith did not support the transfer to MIST were not tainted by the fact that the Claimant had raised a grievance (protected act or not). We consider that there was an understandable degree of frustration on the part of CI Smith. It was understandable because he knew that Sergeant A’s and Sergeant B’s circumstances in transferring to ERPT were very different – she did not have her JRFT or PPST and appeared not to be any closer to getting them. By the time of their transfer both Sergeant A and Sergeant B had both of those things. The Claimant should not reasonably have been focusing on promotion or transfer, she should have been:248.1 listening to the guidance she was being given;248.2 focusing on getting her WBA concluded (it had taken longer than the normal 12 months and we find that there were no barriers to her achieving it in RADT (she had been allocating herself in work hours to do so)); and248.3 putting her energy into regaining her PPST and JRFT.[249]Accordingly this complaint is not well founded and is dismissed. 86 of 108 Detriment – Insp Vallance accusing the Claimant of amending CARM[250]The Claimant complained that, on 18 April 2023, Insp Vallance accused the Claimant of amending CARM and failing to follow proper process for annual leave as an act of unlawful victimisation for having raised her grievance.[251]We have found that the Claimant’s grievance was not a protected act, but we in any event find that if we are wrong, Insp Vallance’s actions towards the Claimant as regards the Claimant’s entries on CARM were not influenced by the fact that the Claimant had raised her grievance.[252]We consider that it was reasonable for Insp Vallance to send her email of 18 April 2023 to address what the Claimant had done on CARMS [332] (whether or not the Claimant had intended to do something different. We also agree that it was appropriate for Insp Vallance, as the Claimant’s line manager, to talk to others (including the Claimant’s subordinates) about what had happened and to then send the Claimant an email. We accept the Respondent’s submission that it is notable that while the Claimant’s first reaction was to say there had been “miscommunication”, during the meeting of 21 April 2023 [323] she told Insp Vallance that she had made “an error due to tiredness in how she worded it and she knows that she should have put ‘awaiting authorisation’ but forgot”. We also accept that it is also notable that had Insp Vallance sought to victimise or bully the Claimant she could have raised this as a conduct issue. However, having addressed it informally Insp Vallance took no further action. There is no evidence that any of Insp Vallance’s actions in this regard were motivated to any degree by the Claimant having raised a grievance.[253]Accordingly this complaint is not well founded and is dismissed. Detriment – Insp Vallance providing low PDR score[254]The Claimant complained that, on 9 May 2023, Insp Vallance provided the Claimant with a low score/average PDR rating as an act of unlawful victimisation for having raised her grievance.[255]We have found that the Claimant’s grievance was not a protected act, but we in any event find that if we are wrong, Insp Vallance’s actions towards the Claimant as regards the Claimant’s PDR scores were not influenced by the fact that the Claimant had raised her grievance.[256]Insp Vallance accepted that she provided the Claimant with a low score of four in two categories [374/395 (We are collaborative) 375/396 (We analyse critically)].[257]Insp Vallance scored the Claimant with a mixture of 3’s and 4’s, with an overall score of 3. We accept Insp Vallance’s evidence KVWS117 that her intention had been to give the Claimant a mixture of 2’s and 3’s (two being a higher rating than 4) to give an indication of performance above the expected standard. However, we accept that the overall grading at 3 was nonetheless correct. There is no evidence to suggest that this was a deliberate act on her part to score the Claimant down. We accept the Respondent’s submission that the Claimant also does not attack the narrative attached to the scores with which she takes issue. 87 of 108[258]We accept that an overall grading of three was intended and fair and was the same grade as Insp Weeden had given the Claimant for months 1-6. It also led to the Claimant being confirmed as a substantive Sergeant. We also accept that when a PDR is finished, a new one is then started, and future line mangers would consider the “current PDR”. We accept that the only circumstances in which a previous PDR would be examined is if in the first six months of a new PDR no targets had been set. In any event, in reviewing the PDR that Insp Vallance completed a different manager would also see the narrative attached to the scores.[259]Accordingly this complaint is not well founded and is dismissed. LOI 4 - Harassment 21 February 2023 – Insp Vallance could write up absence[260]The Claimant complains that in a telephone call on 21 February 2023 Insp Vallance told the Claimant that she could have written up the Claimant’s absences but was not going to do so. It was agreed that this, if it was said, meant that Insp Vallance told the Claimant that she had a discretion to discount some of the Claimant’s disability related absence so that the Claimant could meet the NPPF exam criteria but she was not going to exercise that discretion. In the same conversation it is agreed that Insp Vallance told the Claimant that she did not meet the attendance management criteria for the NPPF exam, that the Claimant had not completed her WBA and she was not putting the Claimant through for the NPPF Inspector’s exam. The Claimant complained that this amounted to disability harassment.[261]Insp Vallance sent her email of 21 February 2023 [244] to CI Smith before speaking to the Claimant. The email says “I have tried to call the office to speak to you […]”. She sent the email to the Claimant about half an hour later [252] and they then spoke on the phone.[262]We do not consider it is probable that Insp Vallance then told the Claimant that she could have written up the Claimant’s absence to allow the Claimant to sit the exam and there is no evidence that Insp Vallance thought that was within her power.[263]Insp Vallance knew that the Respondent generally applied a 20-25% allowance on permitted numbers of days of absence if a person has had disability related leave when considering eligibility to sit promotion examinations [204 284]. She later went on to check with HR what if any allowance could be made for the Claimant’s absence. Insp Vallance did not get that guidance until 9 March 2023 [204/284] (which was that an insufficient 20-25% sickness discount could be made).[264]It was alleged that Insp Vallance made the writing up absence comment to taunt the Claimant. We do not consider that to be at all probable. Insp Vallance had demonstrated support for the Claimant (for example with regaining her fitness) and offered her sensible and pragmatic advice on how she might focus her energies. We accept Insp Vallance’s evidence that she had excluded and 88 of 108 consolidated as much of the Claimant’s sickness as she could and that she could have “written up her absences” to instigate informal action but she had exercised her discretion not to do that [204 – 207].[265]Even if Insp Vallance told the Claimant that she could write up her absence it was not said with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If it did have that effect we do not consider that it was reasonable for it to have had that effect.[266]Accordingly this complaint is not well founded and is dismissed. Email from Insp Vallance to the Claimant of 21 February 2023 at 14:21 [252][267]The Claimant complains that Insp Vallance’s email to her of 21 February 2023 sent at 14.21 [252] amounted to disability and sex related harassment. As relates to disability:[268]The Claimant complained that the following content amounted to disability harassment: The Claimant sat outside MPS sickness absence management policy; ‘..a desire not to over burden yourself, as that is what you felt caused you additional stress/anxiety, resulting in you being away from the work place for a month’ ‘..my concern is that you may be again taking on too much which could negatively affect your wellbeing and ability to perform your role’[269]The Claimant said that this was unwanted conduct related to disability because Insp Vallance was suggesting/indicating that:269.1 taking on the NPPF exams might cause the Claimant to suffer stress and anxiety due to her mental health issues.269.2 Insp Vallance did not believe the Claimant qualified for any reasonable adjustments due to her disability.[270]The Claimant said that this created the prescribed environment because:270.1 it gave the impression that the Claimant’s mental health might negatively impact her ability to perform her current job (as sergeant);270.2 It suggested that the Claimant was not disabled and should not be provided with any adjustments.[271]We do not agree with these contentions. We accept the Respondent’s submission that Insp Vallance was reflecting back to the Claimant the issues the Claimant had 89 of 108 herself raised over the course of the previous months and Insp Vallance was not making any assumptions about the Claimant. Insp Vallance’s email was in the best interests of the Claimant and aimed to help the Claimant pause and reflect on her priorities.[272]We accept the Respondent’s submission that Insp Vallance was trying to be a responsible manager in the context of the NPPF inspector exams being a heavy commitment. We accept Insp Vallance’s evidence that it requires a great deal of study, that has to be completed in an officer’s personal time, amounting to around two hours per night for the six months prior to the exams unless the officer can dedicate two full days each week. We accept that it would have been irresponsible for Insp Vallance to ignore the fact that the Claimant had reported struggling to find time to do her WBA and seek to spend any time on her sickness around her childcare obligations. As the meeting notes from 11 January 2023 record, the Claimant and her husband (who is also a police officer) were both working full time on opposite shifts so when the Claimant was home he was working and the Claimant had to care for their daughter. She said herself “I do have to be mindful of my depression. Doing a 40 hour week and then doing too much on top of that is what got me into a difficult position before” [201].[273]As the Respondent pointed out, the fact that the Claimant worked opposite shifts to her husband became apparent again when Insp Vallance offered assistance when the Claimant’s request for annual leave was declined for the day of a teachers’ strike. [texts at 324-325 and emails at 330 – 331].[274]We do not consider that the comments, if indeed they were unwanted rather than just unwelcome, were related to disability and if they were they were not written with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If they did have that effect we do not consider that it was reasonable for them to have had that effect given that Insp Vallance was reflecting back to the Claimant issues that the Claimant herself had previously raised.[275]Accordingly this complaint is not well founded and is dismissed. As relates to sex:[276]The Claimant complained that the following content amounted to sex harassment: ‘..but struggle to find the time due to managing childcare and your WBA. Are you happy that adding a further demand of studying for your exam won’t add an additional pressure on you ’[277]The Claimant said that this was conduct related to sex as it suggested that the Claimant was struggling to become operational due to her commitments as a mother to a young child. She said that she struggled to pass the JRFT due to loss of fitness and weight gain, not childcare and that the comment in the email created the prescribed environment as it had the effect of humiliating the Claimant, as it gave the impression that Claimant’s childcare might negatively impact her ability to achieve promotion. 90 of 108[278]We note our comments above. We do not consider that the comments, if indeed they were unwanted rather than just unwelcome, were related to sex and if they were they were not written with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If they did have that effect we do not consider that it was reasonable for them to have had that effect given that Insp Vallance was reflecting back to the Claimant issues that the Claimant herself had previously raised.[279]Accordingly this complaint is not well founded and is dismissed. As relates to both disability and/or sex:[280]The Claimant complained that the following content amounted to disability and/or sex harassment: ‘…there is a whole new uplift in skills that you need to become a master of; namely CONNECT, this on top of an exam and still trying to finish you WBA which will add even more of a further demand on you, whilst trying to juggle a very high volume of crimes and investigations.’[281]The Claimant submitted that this comment related to disability as it gave the impression that the Claimant was incapable of getting to grips with a new system and achieving promotion due to her disability, which might cause her to suffer stress and disability related absence. She said it created the prescribed environment as it had the effect of humiliating the Claimant because it gave the impression that her childcare and/or the symptoms and consequences of her disability might negatively impact her ability to perform her job to the requisite standard.[282]This content neither related to sex or disability. Even if it did in the context of the wider email it was simply Insp Vallance helpfully explaining the extra pressures that a move to MIST would create for her. It was Insp Vallance seeking to meet her duty of care to the Claimant. We note our comments above. The comments were not written with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. If they did have that effect we do not consider that it was reasonable for them to have had that effect given that Insp Vallance was reflecting back to the Claimant issues that the Claimant herself had previously raised.[283]Insp Vallance’s email to the Claimant was neither “misogynistic” nor “discriminative of [the Claimant’s] mental health” as the Claimant asserted to Ms Haver when she sent it on to her on 22 February 2023 [258].[284]Accordingly this complaint is not well founded and is dismissed. LOI 5 - Discrimination arising from disability The something arising[285]The Respondent accepts that the Claimant’s sickness absence and loss of fitness and weight gain arose from her disability. The Claimant could not do the 91 of 108 OST/PPST without her JRFT.[286]As regards her sickness absence the Claimant said that (as regards transferring to MIST and sitting the NPPF inspector exams 32 days of her 52 days’ sickness absence from 17 May 2022 to 17 June 2022 ought to have been discounted. She said that her absence from 7 July 2022 to 18 July 2022 ought to be discounted, as per the Met’s Covid-19 policy, given this was a confirmed diagnosis of Covid-19. She says this would have reduced her absence days to eight days in three years.[287]As regards the Claimant’s loss of fitness level and weight gain, she says that this was a consequence of her depression and prevented her from transferring to ERT. Refusal of transfer to ERPT[288]The Claimant said that she was treated unfavourably in being prevented from transferring out of RADT to ERT/ERPT on 2 March 2022 (by CI Smith), 2 March 2022, 28 July 2022, 13 September 2022 (by Insp Vallance) and 2 November 2022 (by Insp Vallance).[289]The Claimant’s lack of fitness and inability to pass the JRFT and PPST arose in consequence of her disability. Because she did not have JRFT and PPST she was not deployed to ERPT and this was unfavourable treatment. The unfavourable treatment therefore was because of something arising in consequence of the Claimant’s disability.[290]The Respondent relied upon the legitimate aims of:290.1 Maintaining an efficient and resilient police force in order to ensure that the Respondent’s statutory obligations can be delivered at proportionate cost;290.2 Ensuring the safety and welfare of the Claimant, other police officers, members of the public, suspects, arrestees and detained persons in compliance with the Respondent’s statutory obligations in relation to Response policing.[291]We accept that these are legitimate aims and the key question is therefore whether the unfavourable treatment was a proportionate means of achieving the those aims.[292]The Claimant said that the Respondent did not risk assess the Claimant to ascertain whether she could safely carry out the role of ERT Sergeant without full PPST and JRFT.[293]The College of Policing describe the role of Response Sergeant in the following terms [629 onwards]: Response Sergeant […] Role Purpose 92 of 108 Response Sergeants provide daily supervision, guidance and support of constables and coordinate, monitor and where necessary respond to frontline policing activity. Key Accountabilities [...] Co-ordinate and control appropriate front line responses and investigations, directing activities and resources, managing risks and reviewing progress to deliver effective Response policing that supports law enforcement and enables public safety. […] Skills […] Able to provide first aid to an appropriate level. […] Skilled in applying personal safety tactics, including de-escalation through effective communication and the use of appropriate tactical options, including equipment and restraints.[294]We accept the Respondent’s submission that there is no proportionate way of permitting a non deployable officer, who by her own account would “stand back and observe” [151], to be on a busy response team. We accept that what the Respondent does, so as not to disadvantage officers whose disability results in this inability to be deployable, is to support them in carrying out adjusted duties – as they did for the Claimant. We accept that is proportionate.[295]We accept the evidence of CI Mahmood that in order for a police officer at the rank of Sergeant to be operationally deployable in ERPT (i.e. part of the team that responds to incidents) they need to have current accreditation/passes in the following areas (which need to be retaken/repeated periodically):295.1 JRFT295.2 PPST / OST295.3 ELS[296]These are needed as the challenges of operational policing mean Sergeants (in common with police constables) need to attend incidents as warrant card-holding police officers. Sergeants often attend and supervise incidents which require them to oversee risk, and part of that is to risk assess themselves and the officers they supervise at the scene of the incident. Whilst they are leading on a scene, a response Sergeant may be assaulted, need to respond to a colleague in danger, or give first aid. The JRFT ensures that a Sergeant has the required level of fitness to cope with the distinctive demands of operational policing. 93 of 108[297]The Defensive PPST accreditation is lower standard than full PPST – it does not achieve the same standard of training. Defensive PPST does not adequately prepare an officer to engage in an emergency response/confrontation. It only allows the officer to be engaged in non-confrontational situations (such as visiting a witness to take a statement or a shop owner to collect CCTV footage). Officers’ interactions within this category need to assessed as low risk by a line manager or risk assessor. We were pointed to and accept the description of Defensive PPST quoted in email correspondence [149]. Defensive PPST satisfies the Respondent that an officer, if attacked, would have the skills to escape but not to actively deal with the situation and apprehend the aggressor.[298]We accept the Respondent’s case that the role of Sergeant is not an office based role, nor is it predominantly so. This is corroborated by the fact that one of the reasons the Claimant wanted to be redeployed to ERPT was that she wanted to be out and about and not in a desk based role [122]. We accept CI Mahmood’s evidence on the importance of Sergeants attending scenes of incidents, being visible (to the public and the police constables for which they are responsible) and leading by example.[299]We accept CI Mahmood’s evidence that he was unaware of an adjusted Sergeant ever being based in a response team (and that this is essentially the same thing as an officer only having Defensive PPST).[300]We also accept CI Mahmood’s evidence and the Respondent’s submission that CI Mahmood was only aware of a single example of a “restricted” Sgt remaining on a response team. That was in circumstances where disciplinary charges were outstanding and the officer had to be “removed from the evidential chain”, which meant that they were unable to access any police data, unable to have access to any live police investigations (either as an individual or as a supervisor). We accept CI Mahmood’s evidence that the circumstances around that individual, were “exceptional” and that it was in no way comparable to the position of an officer who needed long term adjustments to their duties for reasons connected to health.[301]We accept CI Mahmood’s evidence that it would be untenable for the Claimant, as a uniformed police officer to stay in a marked police car or elsewhere and risk being seen by the public as not going to actively intervene in a situation as it unfolded. It was not tenable for the Claimant to say that she could call for back up.[302]There is no way in which a uniformed Sergeant on response could have their role risk assessed and the outcome be that the risk of facing confrontation was minimal. In the absence of the Claimant having her full PPST and JRFT we do not consider that the Claimant could have reasonably been deployed to a response team. On each of the occasions that the Claimant says she was subjected to this unfavourable treatment she only had defensive PPST and did not have her JRFT and the refusal to deploy her to ERPT was justified.[303]Accordingly this complaint is not well founded and is dismissed. 94 of 108 Refusal of transfer to MIST on 22 February 2022[304]The Claimant says that she was treated unfavourably in being prevented from transferring out of RADT to MIST on 22 February 2022 (by CI Smith).[305]The Claimant submitted that:305.1 CI Smith refused the Claimant’s request to transfer to MIST once the Claimant said that she did not want to attend a meeting with him and Insp Vallance without her federation rep, due to the grievance she had raised [258].305.2 CI Smith refused a transfer to MIST request due to the attendance mark policy.305.3 the Respondent’ attendance management criteria states that the attendance policy is only relevant for promotion or corporate posting [540-541].305.4 there was therefore no logical reason that her lateral move to MIST would be refused.305.5 this was a detriment to the Claimant because CI Smith was preventing the Claimant from leaving RADT, knowing that she was experiencing mental health issues in post.[306]The Claimant, in asking for the move, said to CI Smith [249] (emphasis added): You previously mentioned the prospect of me going on MIST team, I understand that [another officer] is going to team shortly and I would like to suggest that I replace him on A team MIST if at all possible? I feel that I am still lacking some evidence for my WBA and feel like I stand a better chance of finishing it off on MIST. I also think a change of scenery would be good for me, albeit a similar role.[307]In her witness statement the Claimant said: CWS106. I emailed CI Smith again asking for a transfer to MIST on 20 February 2023 I did not really want to go to MIST however I felt that I had to desperately get away from Katie and the bullying. MIST was an indoor role, which they should have allowed me to do with defensive PPST and the up side would be that I would be able to get to grips with a new system that had come into the Met called Connect, which was being utilised everywhere but RADT. (See pages 249-250)107. Tom Smith replied later that day, 20 February 2023, and stated they had just done sergeant rebalancing and he believes I chose to stay on RADT (he would have known full well that isn’t the case) and said we could meet at Ilford police station the following day to discuss if easier. (see page 249)[308]The allegation that the Claimant had been bullied by Insp Vallance is unfounded. In any event, the Claimant started to ask for a transfer out of RADT after having 95 of 108 been there barely a month and long before Insp Vallance became her line manager.[309]CI Smith, having made clear that there was no awkwardness surrounding the Claimant’s grievance (and we find that he did not consider it awkward) initially said “We can absolutely support a move to Mist, I’m only surprised as I am certain you previously did not want this. This is why we will all speak in person, to clear the air and truly understand your concerns” [247] but the next day said (emphasis added [258]: The offer was to sit down with you and talk through your career plans and offer a sounding board, options, plan a way though as well as manage expectations, I'm not sure inviting a fed rep is within the spirit of this offer, a discretionary meeting in a busy schedule Let's park it and pick it up once the grievance team have been back in contact with you. With respect to your aspirations to join the Erpt please don't ask again until you are no longer adjusted. You must have full ppst, els and jrft. attendance mark policy and given the issues you cite with your WBA, until you have completed this. The MIST is busy and I'm not going to give a role which will cause you further pressures and issues in achieving your substantive rank. consider adjusted roles on the bcu and elsewhere as part of redeployment if there aren't any here.[310]It had been an eventful couple of days which included Insp Vallance being challenged by the Claimant on whether she had recorded the 11 January 2023 meeting and Insp Vallance had told the Claimant that she was not supporting her request to do the NPPF inspector exams.[311]We find that there was no reason why the Claimant could not complete her WBA in RADT (indeed she completed her side of it in May 2023) [359]. The Claimant did appear to want to argue the WBA point both ways:311.1 On the one hand she argued that moving to MIST would have helped her complete her WBA;311.2 At the same time she had been telling Insp Vallance that her WBA was nearly complete and not a barrier to going forward to the NPPT exam.[312]We find that if the Claimant was struggling to complete her WBA in RADT, a move to MIST, with all of the additional learning that a move to MIST would have 96 of 108 involved, would have been a hindrance rather than a help to her completing her WBA.[313]Given that MIST would have been an office based role (not getting her out and about as she wanted) and the Claimant had been clear in October 2022 that she did not see it as attractive or any form of progression, we anticipate that she would not have wanted to stay there long. She only wanted the transfer to MIST for a change of scene. In her grievance the Claimant commented [436] that CI Smith “also offered me a role in MIST team, which is basically exactly what I am doing now, constant reviews sat in an office, so I declined this as its swapping one poor role for another and a lesser role than what had been offered to [Officer A], so quite frankly why would I accept it as I would be no better off.”[314]We find, based on the wording of his emails, that CI Smith’s reason for ultimately not supporting the Claimant in a move to MIST was that he was concerned about moving the Claimant to a role which would cause her further pressures and issues in achieving her substantive rank (passing her WBA). We also accept Insp Vallance evidence that a move to MIST would entail the Claimant having a “live case load” and the Claimant having to master a new system with a further new uplift of skills.[315]CI Smith kept an open mind making clear that if the Claimant passed her WBA and remained adjusted and unable to move to ERPT then he would consider adjusted roles on the BCU and elsewhere as part of redeployment. Difficulty in completing the WBA was not something arising in consequence of the Claimant’s disability.[316]We find that the Claimant’s attendance record (which did arise in consequence of the Claimant’s disability) was not a material part of CI Smith’s reasoning in refusing a transfer to MIST. We accept the Respondent’s submission that the reason for the treatment was not because of either the Claimant’s lack of fitness or absence arising from disability, but because CI Smith did not consider it would be appropriate at that time for the Claimant to undertake that move. As we say, CI Smith kept an open mind about what might be possible once the Claimant had passed her WBA.[317]Nonetheless, even if the Claimant’s record was a material part of the reason for CI Smith refusing a transfer to MIST (and therefore was because of the something), we find that CI Smith’s decision not to allow the Claimant to move to MIST did not amount to unfavourable treatment. The Claimant wanted the move for a change of scene but we consider that CI Smith fairly judged it not to be in the Claimant’s interests to move her to MIST. He would have preferred to have discussed it in person with the Claimant but we agree with his sentiment that a Fed Rep being at the meeting was not necessary and not in the spirit of the discussion he wanted to have with the Claimant. The Claimant had herself raised concerns about getting WBA work done on top of her shifts and it was not unfavourable for CI Smith to keep the Claimant where she was in RADT so that she did not have the additional pressures associated with a move to a new department, could complete her WBA, gain Sergeant as her substantive rank and focus on regaining her PPST and JRFT. We accept the Respondent’s submission that the Claimant was critical of the Respondent in alleging a lack of 97 of 108 care about the pressures on her but then also critical when her line managers sought to protect her from additional pressures.[318]Accordingly this complaint is not well founded and is dismissed. 21 February 2023 and 13 March 2023 – Insp Vallance blocking NPPF inspector exam[319]The Claimant complained that Insp Vallance preventing her from going forward to take the NPPF inspector exam on 21 February and 13 March 2023 was unfavourable treatment because of her sickness absence which arose in consequence of her disability. The Respondent accepted that because of her sickness absence she was not permitted to go forward to those exams.[320]The Respondent sought to justify this unfavourable treatment arguing that it was a proportionate means of achieving the following aims:a. Use of nationally agreed standards across all forces and ranks.b. To be confident that people have a consistently high level of attendance to be able to demonstrate their performance and to be fair and consistent in decision making.[321]The Claimant argued that preventing her from taking the NPPF Inspector’s exams was unfavourable treatment as the Claimant could not achieve promotion without doing them and we accept this. She further argued that a substantial amount of C’s absence arose due to her disability, specifically 17 May 2022 to 17 June 2022 (within the 12 months prior to February 2023) and 26 June 2021 to 14 November 2021 (within the three years prior to February 2023).[322]We accept that the Respondent’s aims were legitimate and that ‘b’ was reflected in the attendance management selection criteria policy [540].[323]We accept the Respondent’s position that:323.1 there is a discretion built into the policy to take into consideration that those with a disability may well have more time off than non-disabled officers.323.2 HR advised Insp Vallance on 9 March 2023: 323.2.1 a 20-25% leeway could be applied if absences were disability related; 323.2.1.1 this could be over and above/ignoring(i) Covid absences before 1 June 2022 and(ii) pregnancy related absences.[324]We accept the Respondent’s submission that an absolute discount of all disability related absence is not “reasonable or proportionate” and that, if there is a ‘cut off’, the question will be where that should be, and whether it would still be proportionate to add one more day or days. 98 of 108[325]We accept the Respondent’s submission that the Claimant had over 200 days of absence in 18 months. Further shifting of the leeway already applied would have had to be very substantial in order for the Claimant to be allowed to sit the NPPF inspector exams. A few extra days leeway would have made now difference. The additional leeway needed by the Claimant would have had to have been so substantial as to be disproportionate. It would not be proportionate to look only at the periods when the Claimant was absent for sore throats/flu. This, as the Respondent submitted, was essentially what she thought should have happened.[326]We accept the Respondent’s submission that the Claimant’s absence did have an impact on the Respondent, even if the Claimant performed well when she was in work:326.1 other people would have to cover for her.326.2 there was a cost to the Respondent.[327]We also note, based on what the Claimant herself said at the time, that we have strong reservations that the Claimant could have managed the work associated with studying for the NPPF at that time.[328]Accordingly this complaint is not well founded and is dismissed. LOI 6 Failure to make reasonable adjustments NPPF Exam – Attendance Management Criteria[329]The Respondent admits that the Attendance Management Criteria is a PCP and that it placed the Claimant at a substantial disadvantage because the Claimant was more likely to have periods of time off due to disability and was therefore more likely to be penalised due to her absences in not being able to sit the NPPF exams.[330]The Claimant contended that the Respondent should have made an adjustment to the Attendance Management Criteria and either discounted some or all of the disability related absences or extended the number of absences permitted. She said that this would have removed the substantial disadvantage to which she was put. Specifically her case was that the Respondent should have discounted 32 days from 17 May 2022 to 17 June 2022, as this was disability related illness, and discounted the period from 7 July 2022 and 18 July 2022 (as this was a confirmed Covid-19 diagnosis in any event).[331]As regards COVID related absence we accept the Respondent’s submission that the Respondent made a reasonable policy decision to disapply COVID leave prior to 1 June 2022 but not after that point. The policy had led to the Claimant having nine days of absence from March 2022 disregarded. In any event, contracting COVID is not related to having a history of depression.[332]We accept the Respondent’s submission that even had the 32 days from May – June 2022, been discounted there is still a significant history from the previous years. The Claimant had over 200 days of absence in 18 months. The reasons 99 of 108 why we consider that the Respondent was justified in its corresponding treatment of the Claimant under her Section 15 EqA claim lead us to conclude that the Respondent did not fail in its duty to make reasonable adjustments for the Claimant. The adjustments she contended should be made were not reasonable.[333]Accordingly this complaint is not well founded and is dismissed. Transfer out of RADT[334]The Respondent accepts that the requirement for an officer to have full PPST (safety training) ELS (first aid training) and the JRFT (fitness test) in order to be transferred to ERPT is a PCP.[335]The Claimant contended that this PCP put her at a substantial disadvantage as compared to a person who does not have the impairment of depression in that she struggled to pass the JRFT due to having depression and (as a result) losing her fitness and putting on weight.[336]We accept that the Claimant put on weight and lost her fitness because of her depression. However, we were not presented with evidence that on the balance of probabilities the Claimant could not lose weight and regain her fitness because of her depression over the period in question.[337]The Claimant initially suggested that being in RADT was detrimental to her mental health for example:337.1 in her email of 28 February 2022, only a month or so into her time in RADT, she said “I have had a OH review this week and it states that my current role is making my mental health deteriorate and due to that reason I just think it is not right that I should be made to continue in it, as I have a genuine welfare reason to be moved” [122];337.2 in her email of 28 July 2022 she said “but I have to recover from depression first to enable me to do that and being in a role that find soul destroying is not helpful to that” [461]).[338]We conclude that on the balance of probabilities that the evidence suggests that the Claimant(i) did not like the work in RADT (or the challenges of managing the colleagues she had responsibility for there)(ii) was not asking for a transfer because she did not think she could regain fitness and do her PPST while there and(iii) in fact the Claimant’s mental health was generally on an upward trajectory during her time in RADT. We note that:338.1 On 3 March 2022 the Claimant said to CI Smith in an email that she intended to get her JRFT and OST/PPST completed as soon as possible and CI Smith then offered his support to the Claimant [121].338.2 The OH report of 12 September 2022 [146] said: “[…] However she informed that she is not able to undertake the JRFT at present due to reduced fitness and confidence. However, she is reported gradual improvement to her confidence and making plans to lose weight and increase her fitness level to undertake the JRFT. […] We discussed a referral to the EAP service for 100 of 108 counselling and a referral to the rehabilitation team for a one off session for a weight loss programme. She believes that this is not necessary at present. We also discussed a referral to the women’s session at ESB on Sunday`s - for confidence building. She also believes that this is not necessary. She remains on antidepressant medication - which she tells me was reviewed in June to a new type of medication and finds this beneficial. On assessment of current symptoms, she reported ongoing improvement to her mental health symptoms including sleeping pattern, stable concentration, improved confidence and motivation. […] In terms prognosis, PS Goldsmith`s confidence is improving gradually and motivated to increase her fitness level to undertake the JRFT in 2 months time and progress to full PPST,. This timescale is guarded in my view as her fitness level will depend on how well she is progressing with her exercise plan.”338.3 Her grievance of November 2022 [436] said: “I have largely recovered from depression and just need to lose weight and get fit (side effects of depression) to tick the box of the JRFT or look into passing an AFT.”338.4 The 11 January 2023 email from Insp Vallance (following her meeting with the Claimant that day [196/206]) said: “An OH referral is not required in this instance and Suzanne is already on adjusted duties at the present time but working towards improving her general health and wellbeing and hopes to attain full operational capacity this year”.[339]Whilst the Claimant put on weight and lost her fitness because of her disability, her disability was not preventing her from losing weight and regaining her fitness. It was the Claimant’s weight gain and lack of fitness which prevented her from doing the PPST and JRFT not the Claimant’s depression. A person who was overweight and unfit but who did not have depression would have had the same difficulty as the Claimant. Therefore we find that the PCP did not put the Claimant at a substantial disadvantage as someone with the disability of depression in comparison with persons who did not have her disability.[340]We also accept the Respondent’s submission that the identified PCP does not cause the Claimant a disadvantage compared to those without her impairment of depression which would give rise to any of these matters as a reasonable adjustment. The PCP prevented a move to ERPT. It was not this PCP which prevented a move to MetDet (that was the 2 year tenure on BCU post promotion) or MIST.[341]In any event, if we are wrong in that conclusion and the PCP did put her at a substantial disadvantage in comparison with persons who are not disabled, we find that the adjustments contended for were not adjustments that should reasonably have been made for her:341.1 A transfer to ERPT would not have been a reasonable adjustment because the Respondent, for the reasons we have explained in this decision, was justified in insisting that the Claimant have her JRFT and PPST before being abled to be deployed to a response team. 101 of 108341.2 The role in MIST that the Claimant asked to be transferred to was a desk based role that did not require JRFT or PPST and there was no evidence that moving the Claimant to MIST would have addressed the substantial disadvantage pleaded. The Claimant submitted that there was a prospect that the adjustments would have removed the substantial disadvantage, as the Claimant would not have remained in an environment (RADT) that she found “soul destroying” but, as the Respondent submitted, being posted to RADT was not the PCP she relied upon. We do not accept that and there is no evidence that transfer out of RADT would have helped her overcome the difficulty she had in passing the JRFT.341.3 Similarly, there was no evidence that a transfer to Met Det/MO9 or in fact to any other area outside RADT would have helped the Claimant overcome the difficulty she had in passing the JRFT. In any event, the Claimant was reminded of the tenure policy requiring her to complete two years in the EA BCU and for that reason a transfer there did not progress.341.4 The Claimant herself ruled out a transfer to SNT (safer neighbourhoods team) in October 2022 [155] after deciding with her husband that it would not work very well around their childcare needs.[342]Accordingly this complaint is not well founded and is dismissed. Jurisdiction[343]Our findings being that none of the complaints are well founded, we have not gone on to consider whether the Tribunal had jurisdiction to determine those complaints which might have been brought out of time. Employment Judge Woodhead Date 26 November 202428 November 2024 ...................................................................... ...................................................................... For the Tribunals Office 102 of 108 Appendix AGREED LIST OF ISSUES INTRODUCTION:a. A. The Claimant sets out her claims in an ET1 and Grounds of Complaint (‘GOC’), issued in the London Central Employment Tribunal on 22 June 2023, bringing complaints of: a. Victimisation, contrary to s.27 Equality Act 2010;b. Harassment, contrary to s.26 Equality Act 2010;c. Discrimination arising, contrary to s.15 Equality Act 2010;d. Failure to make reasonable adjustment, contrary to ss.20, 21 Equality Act 2010. B. The Respondent set out its resistance to the Claimants’ allegations in its Amended Grounds of Resistance (‘GOR’) served on 20 October 2023. C. The Respondent denies that the Claimant was subject to the prohibited conduct and unlawful discrimination as alleged. All the allegations are denied by the Respondent. ISSUES:
THE LAW
[1]Disability:a. The Respondent concedes that the Claimant is disabled within the meaning of s.6 Equality Act 2010 in relation to the impairment of clinical depression.b. Did the Respondent have knowledge of the disability at all material times?c. Did the Respondent have knowledge of the substantial disadvantage cause to the Claimant by her disabilities.[2]Jurisdictiona. Have any of the claims relating to acts relied upon by the Claimant been submitted out of time such that the act or omission relied upon is not part of a continuing act and is out of time? The Claimant’s claims are prima facie out of time; the primary limitation period lapsed on 19 February 2023.b. If so, is it just and equitable for the Employment Tribunal to exercise its discretion to extend the limitation period?[3]Victimisationa. In submitting a formal grievance on 24 November 2022, did the Claimant do a protected act? 103 of 108b. If so, has the Claimant been subject to the detrimental treatment, set out at paragraph 84 of the GOC, namely: i.[On 13 December 2022, Insp Vallance berating the Claimant in front of the office for being late on shift (para 35 GOC); i. On 11 January 2023, having an informal meeting with Insp Vallance covertly recorded (paras 36, 42, 43 GOC) ii. On 13 February 2023, Insp Vallance removing the Claimant from the Goodmayes Project (paras 37-38 GOC); iii. On or about 21 February 2023, Insp Vallance blocking the Claimant’s request to sit the NPPF Inspector’s exams (paras 46, 47 GOC); iv. On 14 February 2023, refusing the transfer request to MetDet (para 41 GOC); iv. iv. On 22 February 2023, CI Tom Smith refusing the transfer request to MIST (paras 44, 56 GOC) v. On or about 10 March 2023, Insp Vallance refusing to review and assist the Claimant in her application for the NPPF Inspector’s exams prior to the deadline (para 60, 61, 62 GOC); vi. On 18 April 2023, Insp Vallance accusing the Claimant of amending CARM and failing to follow proper process for annual leave (para 65 GOC); i. On or about 1 May 2023, Insp Vallance submitting the MM1 to PSD recording a sanction against the Claimant (paras 66-68 GOC); vii. On 9 May 2023, Insp Vallance providing a low scoring/average PDR rating for the Claimant (para 69 GOC).c. Was she subjected to that treatment because she has done the protected act?[4]Harassmenta. Did the Respondent engage in the conduct set out in paragraphs 85 of the Claimant’s GOC, namely: i. The telephone call on 21 February 2023 from Insp Vallance to the Claimant during which she said that she could have written up the Claimant’s absences (ie applied a disability criteria to assist) but she was not going to do so. She stated that the Claimant did not meet the attendance management criteria. Further she stated that the Claimant had not completed the work based assignment and she was not putting the Claimant through for the NPPF Inspector’s exam. (para 46 GOC); ii. The email sent from Insp Vallance to the Claimant, sent at 14.21 on 21 February 2023, which said: 104 of 108 As relates to disability: a. The Claimant sat outside MPS sickness absence management policy;b. ‘..a desire not to over burden yourself, as that is what you felt caused you additional stress/anxiety, resulting in you being away from the work place for a month’c. ‘..my concern is that you may be again taking on too much which could negatively affect your wellbeing and ability to perform your role’ As relates to sex:d. ‘..but struggle to find the time due to managing childcare and your WBA. Are you happy that adding a further demand of studying for your exam won’t add an additional pressure on you ’ As relates to both disability and/or sex:e. ‘…there is a whole new uplift in skills that you need to become a master of; namely CONNECT, this on top of an exam and still trying to finish you WBA which will add even more of a further demand on you, whilst trying to juggle a very high volume of crimes and investigations.’ (paras 47-51 GOC). b. If so, was that unwanted conduct? c. If so, did it relate to the protected characteristic of disability and/or sex? d. Did the conduct have the purpose or effect (taking into account the Claimant’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect) of violating the Claimant’s dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment for her?[5]Discrimination arisinga. Did the Respondent treat the Claimant unfavourably because of something arising in consequence of the Claimant’s disability?b. Did the Respondent: i. Prevent the Claimant from transferring out of RADT to ERT or MIST. C was prevented from moving to ERT on 2 March 2022 (by CI Smith), 28 July 2022 (by CI Smith), 13 September 2022 (by Insp Vallance), and 2 November 2022 (by Insp Vallance). C was prevented from moving to MIST on by CI Smith on 22 February ii. Prevent the Claimant from undertaking the NPPF Inspector’s exams. C was prevented from undertaking the NPPF exams on 21 February 105 of 108 2023 by Insp Vallance. Her application was formally rejected on 13 March 2023.c. If so, was this unfavourable treatment because of something arising in consequence of the Claimant’s disability?d. Was the something arising: i. The Claimant’s sickness absence (in the case of preventing the Claimant from transferring to MIST or sitting the Inspector exams). Claimant avers that C had 52 days of absence in three years. The Claimant avers that her 32 days of sickness absence from 17 May 2022 to 17 June 2022 ought to have been discounted. The Claimant further avers that the absence from 7 July 2022 to 18 July 2022 ought to be discounted, as per the Met’s Covid-19 policy, given this was a confirmed diagnosis of Covid-19. This would have reduced the Claimant’s absence days to 8 in three years. ii. The Claimant’s loss of fitness level and weight gain (in the case of preventing the Claimant from transferring to ERT). The Claimant avers that this was a consequence of her depression.e. Was the treatment a proportionate means of achieving a legitimate aim? i. The Respondent relies on the following legitimate aims in relation to posting criteria to response teams: a. Maintaining an efficient and resilient police force in order to ensure that the Respondent’s statutory obligations can be delivered at proportionate cost; b. Ensuring the safety and welfare of the Claimant, other police officers, members of the public, suspects, arrestees and detained persons in compliance with the Respondent’s statutory obligations in relation to Response policing; ii. The Respondent relies on the following legitimate aims in relation to the application of the attendance criteria provisions to sit promotion examinations: a. Use of nationally agreed standards across all forces and ranks. b. To be confident that people have a consistently high level of attendance to be able to demonstrate their performance and to be fair and consistent in decision making.f. What was that aim?[6]Failure to make reasonable adjustmentsa. Was the Respondent under a duty to make reasonable adjustments? 106 of 108b. If so, did the Respondent fail to comply with that duty?c. The Claimant sets out the allegations at Para 60 to 65 of the Grounds of Complaint. NPPF Exam – Attendance Management Criteriad. The Respondent admits that the Attendance Management Criteria is a PCP.e. Is the Attendance Management Criteria also part of the criteria for allowing officers to undertake the NPPF Inspector’s exams, if so, is this a PCPf. Did the PCPs put the Claimant at a substantial disadvantage as compared to a person who does not have the impairment of depression.g. What was the substantial disadvantage? The Claimant was more likely to have periods of time off due to disability and therefore more likely to be penalised due to her absences.h. What reasonable steps were made or could have been made to remove the disadvantage? The Claimant avers that the Respondent could have:i. Made an adjustment to the Attendance Management Criteria and either discounted some or all of the disability related absences or extended the number of absences permitted. Specifically, the Respondent should have discounted 32 days from 17 May 2022 to 17 June 2022, as this was disability related illness, and discounted the period from 7 July 2022 and 18 July 2022 (as this was a confirmed Covid-19 diagnosis in any event). Transfer out of RADT i. The Respondent accepts that the requirement for an officer to have full PPST (safety training) ELS (first aid training) and the JRFT (fitness test) in order to be transferred is a PCP.j. Did the PCP put the Claimant at a substantial disadvantage as compared to a person who does not have the impairment of depression?k. What was the substantial disadvantage? The Claimant struggled to pass the JRFT due to having depression and (as a result) losing her fitness and putting on weight.l. What reasonable steps were made or could have been made to remove the disadvantage? The Claimant avers that the Respondent could have: i. Allowed the Claimant to move to MIST, MetDet or another role in the BCU. ii. Allowed the Claimant to move to Response with the defensive PPST and carrying out a risk assessment for full deployment, as 107 of 108 recommended by OHU on 13 September 2022 (page 150 of the hearing bundle).[7]Remedya. Has discrimination occurred and if so, should the Employment Tribunal make a declaration to that effect?b. Should the Employment Tribunal make an award for injury to feelings?c. What band should any award fall into?d. What award would be just and equitable in the circumstances?e. Is the Claimant entitled to any other compensation or relief?f. Is the Claimant entitled to interest? 108 of 108