Mr J Boothe v The Commissioner of Police of the Metropolis: 2213191/2024
EMPLOYMENT TRIBUNALS
Case No 2213191/2024
Between
Mr J BootheClaimantThe Commissioner of Police of the MetropolisRespondent
Before
Employment Judge P KlimovMs J Linford (instructed by counsel) for claimantMr A Allen KC (instructed by counsel) for respondentDate 9 September 2024
JUDGMENT
[1]At the relevant times the claimant did not have a disability within the meaning of section 6 of the Equality Act 2010.[2]The claimant’s complaints of disability discrimination are therefore dismissed.
REASONS
[1]This hearing was a preliminary hearing (in public), ordered by Employment Judge Spencer on 17 June 2024, to determine whether the claimant was at the relevant times a disabled person for the purposes of the Equality Act 2010, and time permitting, to deal with further case management.[2]Ms Linford appeared for the claimant, and Mr Allen KC for the respondent. I am grateful to both Counsel for their submissions and other assistance to the Tribunal.[3]I was referred to various documents in a 70-page electronic bundle of documents the parties introduced in evidence. I also considered EJ Spencer’s case management orders dated 18 June 2024, and the Respondent’s Skeleton Argument, which was helpfully prepared by Mr Allen.[4]The claimant presented a disability impact statement as his sworn evidence in chief on the issue of disability, upon which he was cross-examined by Mr Allen. He also presented a document, which he described as a medical report by Dr Bichard (“Bichard’s report”). The report was in the form of a letter dated 15 March 2015, which was not signed by Dr Bichard, nor otherwise indicated that Dr Bichard was the author of the document. It did not say who Dr Bichard was or gave his qualifications. The Birchard’s report was the only medical evidence before me.[5]The claimant’s evidence was that Dr Bichard, who the claimant said had sadly passed away, was DPsych in Psychotherapy and the founder of Association for the Treatment of Sexual Addiction and Compulsivity and the Marylebone Centre for Psychological Therapies. No other evidence was presented by the claimant about Dr Bichard’s qualifications or credentials of the Association the claimant said he had founded1.[6]Furthermore, the Bichard’s report appears to record the claimant’s initial interview with Dr Bichard in March 2015 and his assessment of the claimant as at that time, where the relevant period for the purposes of this claim is 2023.[7]In any event, I duly considered the content of the Bichard’s report and all other evidence before making my decision on the issue of disability. Relevant Background 1 The claimant in his evidence said that Dr Birchard’s qualifications and information about the Association could be Googled. I explained that it is for the party that relies on a particular evidence to produce such evidence and for the Tribunal to search for the suggested evidence on the internet.[8]The claimant presented this claim for race and disability discrimination on 1 March 2024. The claim form and the Grounds of Complaint were prepared by the claimant’s solicitors (DAS Law). The complaints in the claim are of direct race discrimination (s.13 Equality Act 2010 (“EqA”)), discrimination arising from disability (s.15 EqA), and victimisation (s.27 EqA).[9]In the Grounds of Complaint (at paragraph 7) the claimant stated that “[his] expartner knew that the Claimant was suffering from a sex addiction, which had led to him using prostitutes”. A further reference to “sex addiction” was made at paragraphs 11 and 18. The claimant claims that the alleged leak to the press by the respondent of his sex addiction was unfavourable treatment because of something arising in consequence of his disability (s.15 EqA), and also an act of victimisation (s.27 EqA). However, the Grounds of Complaint are unclear as to what the alleged “something arising” is.[10]At the preliminary hearing on 17 June 2024 before EJ Spencer the claimant was represented by Mr J Searle of counsel. EJ Spencer recorded that “[d]espite being legally represented the issues are not clear from the claim form. I was provided with a draft list of issues which did no more than set out the generic legal tests – and was not in any way tailored to the particular issues claimed by the Claimant”. The Judge also recorded that Mr Searle had no instructions and as a result little progress was made at the hearing.[11]With respect to the claimed disability, the Judge said: “The disability claimed is a mental health disorder which, though not wholly clear from the pleadings, was thought to be a sex addiction. Disability is not admitted.” She also noted: “From the particulars of claim it appears that the only detriment which is disability related is a section 15 complaint suggesting that an alleged leak to the press about the Claimant was unfavourable treatment because of something arising from disability (see paragraph 19), but it is not clear what is relied on as the “something arising” or how it said to be the cause of the leak.”[12]The Judge listed this hearing to determine the issue of disability and gave detailed orders, including (my emphasis): “4. On or before 24 June 2024 the Claimant shall draft and send to the Respondent a properly particularised list of issues for the tribunal to determine for agreement. The list of issues should set out clearly the disability relied on and, to the extent a claim under section 15 of the Equality Act is made, the “something arising” from disability, and how that is linked to the pleaded detriment….. 7. Or before 1 July 2024 the Claimant shall send to the Respondent and the Tribunal an impact statement confirming what mental impairment he relies on. The impact statement must [contain] all information on which he relies to establish that he was a disabled person at the relevant time and contain the following information about his impairmenta. How long has the Claimant had the impairment?b. What are/were the effects of the impairment on the Claimant’s ability to do day-to-day activities at the relevant time.c. Give the dates when the effects of the impairment started and stopped. If they have not stopped, say how long they are expected to last.d. If the effects lasted less than 12 months, why does the Claimant say they were long-term?e. Has the Claimant had medical treatment, including medication? If so, what and when?f. Has the Claimant taken other measures to treat or correct the impairment? If so, what and when?g. What would the effects of the impairment have been without any treatment or other measures? The Claimant should give clear day-to-day examples, if possible.h. Any other information the Claimant relies on to show that s/he had a disability. 9. On or before 29 July 2024 the Claimant must send to the Respondent a copy of all medical or other evidence on which he relies relevant to whether he had the disability at the relevant time. If GP records are provided in support of the Claimant’s case, he may blank out anything that is clearly not relevant. In the event there is some delay in providing the above medical evidence the Claimant must write to the Tribunal explaining(i) what documents have been requested(ii) when they were requested(iii) what is the cause of the delay; and(iv) when the evidence expected to be provided.”[13]The claimant failed to comply with the EJ Spencer’s orders and did reply to the respondent’s communications chasing him for his evidence. That prompted the respondent to apply, on 9 July 2024, for an unless order.[14]On 17 June 2024, the Tribunal wrote to the claimant noting that he had failed to respond to the respondent's application and that it appeared that the claim was no longer being actively pursued. The claimant was ordered to write back within 7 days to confirm whether the claim was pursued or withdrawn, and if the former - why he had failed to comply with the Tribunal’s orders.[15]On 22 June 2024, the claimant sent to the respondent his disability impact statement, but no medical evidence. The respondent unsuccessfully chased the claimant for his medical evidence.[16]On 7 August 2024, the claimant’s solicitors wrote to the respondent’s solicitors stating that medical evidence would be provided “this week” but failed to do so, which, in turn, prompted the respondent, on 13 August 2024, to make another application for an unless order.[17]Later the same day, 13 August 2024, the claimant sent the Birchard’s report as the sole medical evidence2. 2 The claimant later sought to postpone the hearing to obtain a further expert medical report. That application was refused by EJ Burns on 19 August 2024, however, leaving at the Judge’s discretion whether to deal with[18]In his disability impact statement, the claimant claimed that his disability was obsessive-compulsive disorder (“OCD”), and not sex addiction, as his Grounds of Complaint suggested. Judging by the claimant’s draft list of issues presented for the hearing, sex addiction (“an addiction to sexual intercourse”) is now said to be something arising in consequence of the claimant’s OCD.
The Law
[19]Both parties were represented by Counsel at the hearing. Mr Allen’s skeleton contained a section dealing with the applicable legal principles. Ms Linford did not raise any issues with the legal principles and authorities referred to and relied upon by Mr Allen in his submissions. In short, there was no disagreement on points of law.[20]In addition to the relevant legal principles set out at paragraphs 22-31 of Mr Allen’s skeleton3, which I accepted and applied in making my decision, I also self-directed myself to the EAT decision in Igweike v TSB Bank plc [2020] IRLR 267, in which HHJ Auerbach, having reviewed the authorities on the question of identifying an impairment, held at [46], [47] and [50] (my underlining) “46. I turn first to ground one. Mr Young did not go quite so far as to say that the Judge necessarily erred, purely because he addressed the impairment question before he addressed the questions of substantial and long-term adverse effect. That indeed is not the law. In concurrence with the discussion in Herry, I do not read the discussion at para 42 of J v DLA Piper UK LLP as laying down a rigid rule of law to that effect. It is guidance as to an approach that may be helpful, particularly in a certain type of case, where, if the Tribunal does find that there was a substantial and long-term adverse effect, the Tribunal may then consider that that finding in turn supports an inference that that effect was caused by some impairment. 47. There may, it can be said, be a risk in such a case that if the Tribunal considers the impairment question first – and finds none established – it may fail sufficiently to turn its mind to whether such an effect, if found, might have affected its conclusion on the impairment question. However, what matters ultimately is not the running order in which the Tribunal discusses or presents its conclusions on these aspects, but whether, by the end of the decision, it has erroneously failed to find that there was such an effect, and/or, if so, whether it has, or has also, erroneously failed to draw the inference, taking account of such a finding, that there was an impairment. […] 50. Secondly, while there is no longer a rule of law that a mental impairment must be clinically wellrecognised, nor is there any rule that such an impairment cannot ever be made out without medical evidence, nevertheless, as the discussion in both J v DLA Piper UK LLP and Morris explains, it is a practical fact that, in some cases of this type, the individual's own evidence may not be sufficient to satisfy the Tribunal of the existence of an impairment. In some cases, even contemporary medical notes or reports may not be sufficient, and expert evidence prepared for the purposes of the litigation may be needed. To say all of this is not to introduce either of these legal heresies by the back door. The question is a purely practical or evidential one, which is sensitive to the nature of the alleged disability, the facts, and the nature of the evidence, in the given case. the disability issue at the hearing or to adjourn it pending receipt of further medical evidence. Ms Linford renewed the postponement application at the hearing, which I refused for the reasons I gave to the parties orally at the hearing. 3 For brevity, I do not reproduce them in this judgment. Analysis and Conclusions[21]The claimant relies on OCD as the relevant mental impairment. The only evidence before me as to the existence of the alleged impairment is the claimant’s say so in his disability impact statement. The claimant says that he was diagnosed as having that condition by Dr Bichard on 15 March 2015. However, the document the claimant presented as the report prepared by Dr Bichard makes no reference to OCD. In fact, what the Bichard’s report says under the heading “control” is that the claimant had established “a life style around the need to be in control …. and that grew out of circumstances”. (my emphasis)[22]In the summary section, the Bichard’s report states that it is the claimant’s “Avoidant personality” that is the underlying cause of the claimant’s sex addiction, which the report describes as a “release mechanism”. The “Avoidant personality”, the report states, was developed in the claimant’s childhood and will remain for the rest of his life. The report speculates how that could have come about by discussing the claimant’s relationship with his parents when he was a child.[23]Notably, the Bichard’s report says that the “Avoidant personality” (which the report says - “still face experiments”) is one of the four “attachment styles”, and therefore by implication a normal personality trait and not some kind of a mental abnormality.[24]The Bichard’s report says that the style “can be reduced … to have a mutual and reciprocal relationship” and recommends group and individual work to “explore more about who you are and how you can become more what you want to be”.[25]Although the Bichard’s report is not signed, the claimant’s evidence is that it was prepared by Dr Bichard, who was Doctor of Psychology in Psychotherapy and the founder of Association for the Treatment of Sexual Addiction and Compulsivity and the Marylebone Centre for Psychological Therapies.[26]The claimant also says that Dr Bichard diagnosed the claimant with OCD verbally, but did not include that diagnosis in his medical report. I do not accept that. On the balance of probabilities, I find that if Dr Bichard had indeed diagnosed the claimant with OCD, it would have been stated in his report.[27]OCD is a well-recognised and classified condition. The International Classification of Diseases of the World Health Organisation ICD-11 describes it as: “F42: Obsessive-compulsive disorder The essential feature is recurrent obsessional thoughts or compulsive acts. Obsessional thoughts are ideas, images, or impulses that enter the patient's mind again and again in a stereotyped form. They are almost invariably distressing and the patient often tries, unsuccessfully, to resist them. They are, however, recognized as his or her own thoughts, even though they are involuntary and often repugnant. Compulsive acts or rituals are stereotyped behaviours that are repeated again and again. They are not inherently enjoyable, nor do they result in the completion of inherently useful tasks. Their function is to prevent some objectively unlikely event, often involving harm to or caused by the patient, which he or she fears might otherwise occur. Usually, this behaviour is recognized by the patient as pointless or ineffectual and repeated attempts are made to resist. Anxiety is almost invariably present. If compulsive acts are resisted the anxiety gets worse. Incl.: anankastic neurosis obsessive-compulsive neurosis Excl.: obsessive-compulsive personality (disorder) (F60.5) F42.0 Predominantly obsessional thoughts or ruminations These may take the form of ideas, mental images, or impulses to act, which are nearly always distressing to the subject. Sometimes the ideas are an indecisive, endless consideration of alternatives, associated with an inability to make trivial but necessary decisions in day-to-day living. The relationship between obsessional ruminations and depression is particularly close and a diagnosis of obsessivecompulsive disorder should be preferred only if ruminations arise or persist in the absence of a depressive episode. F42.1 Predominantly compulsive acts [obsessional rituals] The majority of compulsive acts are concerned with cleaning (particularly handwashing), repeated checking to ensure that a potentially dangerous situation has not been allowed to develop, or orderliness and tidiness. Underlying the overt behaviour is a fear, usually of danger either to or caused by the patient, and the ritual is an ineffectual or symbolic attempt to avert that danger.[28]The Birchard’s report is sufficiently detailed. It discusses various aspects of the claimant’s personality and the history of its development. The report concludes with a summary and recommendations. The claimant says that Dr Bichard had a professional doctoral degree in Psychotherapy. I, therefore, find that it is extremely unlikely that if Dr Bichard had diagnosed the claimant with OCD (as the underlying mental condition) he would have omitted to mention that important finding in his medical report, instead describing the claimant’s condition as one of the four “attachment styles”.[29]I am further reinforced in that conclusion by the fact that the claimant produced no further evidence to support his claim that he at the relevant times he had OCD. In his disability impact statement, he says that he had advised occupation health of that condition, and yet he produced no occupational health report. He says that he consulted his GP about “anxiety attacks/mild depressive episodes”, which were caused by his arrest and “the combined effects of my obsessive-compulsive disorder”, and yet he produced no GP records.[30]I pause here to explain that the burden is on the claimant to prove, on the balance of probabilities, that at the relevant times he had a disability. He was ordered to provide medical evidence in support of that contention. It is no answer to say, as the claimant did several times during the hearing, that his solicitors did not ask him to provide such further evidence, but they are available somewhere. If they are available but have not been produced, they are not the evidence before this Tribunal, and I cannot proceed to decide the issue on the basis that such evidence indeed exist, even less so - that they show what the claimant says they will show, if produced. I must decide the issue of disability based on the evidence before me.[31]The claimant has been represented by solicitors throughout this litigation, and by Counsel at the last preliminary hearing and at this hearing. Therefore, I see no good reasons why these critical evidential materials (if they indeed exist) have not been produced for the hearing, as the claimant has been ordered to do by the Tribunal as far back as 17 June 2024 and chased by the respondent many times for the same.[32]Finally, it is also notable that despite the claimant now firmly saying that his disability has always been OCD, his claim form makes no mention of that condition. Furthermore, at the preliminary hearing on 17 June 2024, it was not raised either, albeit I accept that the claimant was not present at the hearing and it appears that counsel representing the claimant turned up for the hearing without any instructions. Nevertheless, the condition was recorded in the record of that hearing as “a mental health disorder which, though not wholly clear from the pleadings, was thought to be a sex addiction”. The claimant did not write back to the Tribunal to say that it was incorrect. It is not until the claimant sent in his disability impact statement on 13 August 2024 that OCD got mentioned for the first time.[33]I find the claimant’s explanation about “some confusion” between him and his solicitors about the underlying medical condition, and the use of OCD and sex addiction as interchangeable terms unpersuasive.[34]The claimant in his disability impact statement says that:a. he was diagnosed with OCD by Dr Birchard in March 2015,b. in 2018, he told his GP that his anxiety was caused by his arrest and effects of obsessive-compulsive disorder,c. he advised the respondent’s occupation health provider about his OCD (the claimant in cross-examination said it was around 2018),d. in 2019 he made aware the respondent’s Head of the Department for Professional Standards, Assistant Commissioner Helen Ball, about this condition (though under cross-examination the claimant said that he could not recall the exact words),e. in 2021, he informed the Deputy Commissioner Stephen House about this condition, during the settlement agreement negotiations (again, when cross-examined on that evidence, the claimant said he could not recall the exact words), and yet the claimant somehow forgot to state this condition in his particulars of claim, instead suggesting that it was his sex addiction that he relied upon as a mental impairment. I find that if the claimant thought that he had OCD and wished to rely upon it as his mental impairment, it is highly unlikely that he would have omitted to state that in his claim form or correct the record of the preliminary hearing on 17 June 2024.[35]It is more likely that the reliance on OCD first arose sometime after the hearing on 17 June 2024, when it became apparent to the claimant and his solicitors that the claimant would have serious difficulties relying on his alleged sex addiction as a disability within the meaning of s.6 EqA.[36]For all these reasons, I find that the claimant has failed to establish that at the material times he had a mental impairment by reason of OCD. It follows, the impairment condition of the disability test is not satisfied, meaning that at the relevant times the claimant was not a disabled person within the meaning of s.6 EqA.[37]That is enough for me to dispose with the issue. However, bearing in mind the guidance of the EAT in Igweike (see above), I also examined the issue from “the opposite end”, that is by considering whether the claimant has shown that at the relevant times he was experiencing adverse effect on his ability to carry out normal day-to-day activities (the “adverse effect condition” per Goodwin v Post Office [1999] ICR 302).[38]The claimant’s evidence on this issue is equally unpersuasive. Although he says that he has difficulties with:a. preparing himself to go to work,b. travelling by public transport,c. interaction with people,d. using lifts,e. engaging in any form of physical contact, including shaking anyone’s hand,f. reading, and understanding what is being said or being understood, he gives no concrete examples of any of the events or occasions when these difficulties manifested themselves and how. And that is despite the case management orders being very specific that the Claimant “should give clear day-to-day examples, if possible”.[39]He says that he was offered medication by his GP, but, again, has failed to produce any supporting evidence. If the fault lies with his solicitors for not pressing the claimant to produce such evidence, it is a matter between the claimant and his solicitors, but it is not sufficient to bridge this evidential gap by simply saying (as the claimant did at the hearing) that these documents could be obtained.[40]I also note that what the claimant says in his disability impact statement about his difficulties with day-to-day activities is inconsistent with the Birchard’s report he relies upon as the sole medical evidence. The Bichard’s report does not record any of such difficulties, despite containing a fairly detailed account of “issues” the claimant shared with Dr Birchard at the assessment interview. On the contrary, the Birchard’s report records that the claimant is physically fit, intelligent, strong, capable, self-assured, professionally successful.[41]The claimant’s Grounds of Complaint state (at paragraph 9) that he “championed diversity within the MPS. His work involved planning and implementing initiatives to increase the number of women and black people attracted to working for the MPS. These initiatives were very successful.” There is no mention of any difficulties the claimant now says he had in doing his work, travelling, meeting people, reading or understanding what being said.[42]The claimant also describes how we wanted to attend (and on the respondent’s case did attend) the International Association of Chief Police Officers conference in San Diego. The Grounds of Complaint go on to describe the meetings he had with various individuals at the respondent’s organisation. Again, no mention is made of any difficulties the claimant now says he had in interacting with any of those people or travelling to and attending any such meetings or events.[43]The claimant also describes how he was nominated and given various awards, including for demonstrating “exceptional skills in handling sensitive and crisis situations”. That, again, appears inconsistent with the claimant’s current evidence that at that time he had difficulties with interacting with people.[44]Finally, on the claimant’s own case his sex addiction “led to him using prostitutes” for sex (at [7] of the Grounds of Complaint). Without wishing this to be taken as a somewhat flippant remark, this does involve physical contact, and therefore is wholly inconsistent with the claimant’s evidence at [12] of his disability impact statement that he is “very reluctant to engage in any form of physical contact.”[45]For all these reasons, I find that the claimant has failed to present sufficient evidence to prove that at the material times he was experiencing adverse effect on his ability to carry out normal day-to-day activities, even leaving aside the issues of the underlying impairment and causation.[46]Therefore, even if the issue is approached by considering the “substantial adverse effect” condition first, the outcome is the same - the claimant’s claim that he had a disability at the material times must fail.[47]Finally, and for completeness, I also examined the matter by considering whether any of my conclusion would be different if I were to take the claimant’s sex addiction as the relevant mental impairment, and not, as currently advanced by the claimant, - something arising from his alleged OCD.[48]I find that on that assumed premise the claimant’s claim would be even less probable.[49]That is because:a. Firstly, even if, for the sake of argument, sex addiction were to be accepted as a mental impairment (and I make no determination on this, since the claim has not been advanced on that basis before me), as I have found the claimant has failed to prove the adverse effect condition, therefore the test of disability would still not be met.b. Secondly, the claimant has failed to show a causative link between what the claimant says his difficulties were with respect to carrying out normal day-to-day activities and his sex addiction. The closest he comes to that is at paragraph 27 of his disability impact statement, where he says that “when the news of [his] medical condition was leaked to the media … he was overwhelmed with feelings of selfloathing, stress, anxiety, and a strong feeling of being persecuted.” However, the claimant accepted in cross-examination what was “leaked” to the press was not his medical condition of sex addiction, but the fact that he had been hiring prostitutes for sex.c. Therefore, if there were any causative link there to be found, it would be between the alleged “self-loathing, stress, anxiety, and a strong feeling of being persecuted” and the alleged leaking to the press of that fact (i.e. the claimant’s use of prostitutes).d. Even if causation could be made out by a three-step analysis (that is - sex addiction led the claimant to use prostitutes, in turn, the claimant’s use of prostitutes led to the alleged leak to the press, and the leak to the press led to self-loathing, stress, anxiety, and a strong feeling of being persecuted ), the causative link would still be to those feelings and not to any substantial adverse impact on the claimant’s ability to carry out normal day-to-day activities, which, as I have found, the claimant did not have.[50]In sum, I find that at the relevant times the claimant did not have a disability within the meaning of s.6 EqA. It follows that all the claimant’s complaints of disability discrimination stand to be dismissed.