Mr E Kelly v The Commissioner of Police of the Metropolis: 2302072/2023

EMPLOYMENT TRIBUNALS

Case No 2302072/2023

Between

Mr E KellyClaimant

The Commissioner of Police of the MetropolisRespondent

Before

Employment Judge T Perry,

In person for claimant

Date 11 March 2025

JUDGMENT

[1]The Claimant’s claims for direct disability discrimination and discrimination arising from disability are dismissed on withdrawal.

[2]The Claimant’s claim for failure to make reasonable adjustments fails and is dismissed.

[3]The Claimant’s claim for harassment related to disability fails and is dismissed.

REASONS

[1]The Tribunal was provided with a bundle of documents running to 1028 pages. The Respondent provided an additional documents bundle running to 269 pages. The parties provided a cast list and chronology, for which we were grateful.

[2]The Claimant gave evidence from a written witness statement. The Respondent did not challenge the evidence of the Claimant’s mother, Margaret Kelly. For the Respondent the Tribunal heard evidence from Ms Denise Giles, Prosecutions Manager, Mr Zac Norris, HR Case Manager, Ms Alicia Patel, T/HR Contracts Lead, Mrs Cathy Scott, formerly South East Prosecutions Manager, and Mr Andy Milligan, Head of Prosecutions. The Tribunal allowed the Respondent to rely on a supplementary witness statement of Mr Milligan, which covered matters occurring after the date of exchange of witness statements.

[3]Adjustments were agreed for the Claimant to take breaks at short notice as required and for a slightly longer lunch hour. Mr Milligan was allowed some leeway, if needed, to consider his answers to cross examination questions as was the Claimant.

[4]The Tribunal had the benefit of written submissions from both parties and heard further brief oral submissions.

The issues

[5]At the start of the hearing, the Tribunal clarified the issues in the case.

[6]The Claimant is automatically disabled by virtue of Multiple Sclerosis, which was diagnosed in December 2013. The Claimant no longer advances his claims in relation to Lyme’s disease, asthma, and allergy to immunisations.

[7]The Claimant withdrew his claims for direct disability discrimination and discrimination arising from disability and reduced the number of alleged instances of harassment related to disability. As a result, the Respondent confirmed that time limit issues were not at issue in the case. The final list of issues the Tribunal has to determine was agreed as follows: 5 Reasonable Adjustments (Equality Act 2010 sections 20 & 21)5.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

5.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 5.2.1 The requirement to return to the workplace for at least 2 days a week

5.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that he suffered fatigue (requiring naps during the day), suffered mobility issues (including falls), required emergency access to the toilet, was unable to carry objects and / or had increased susceptibility to infection due to his weakened immune system?

5.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

5.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:5.5.1 From 12 February 2023 permit the claimant to work from home on a full time basis until he confirmed that this was no longer required.

5.5.2 To relocate the claimant to an office closer to home, in a smaller building with less people, with somewhere to sleep, own toilet and washing facilities.

5.5.3 Working from Catford Office with access to an office and disabled toilet and consent to return home during his lunch break to sleep

5.6 Was it reasonable for the respondent to have to take those steps and when?

5.7 Did the respondent fail to take those steps? 6 Harassment related to Disability (Equality Act 2010 section 26)

6.1 Did the respondent do the following things: 6.1.4 On 17 January 2023 did Ms Vacher lie when she informed the claimant that OH had informed her that the term “agile working” meant for the claimant to return to work on a blended pattern? 6.1.5 On 17 January 2023 did Ms Vacher and / or Mr Norris decline the claimant’s request for another OH referral? 6.1.7 On 22 March 2023, did Ms Vacher lie / misinform the claimant when she stated: “I would also like to refer you to the MPS flexible working policy (link below) that specifically states that you cannot ask to work from home permanently… it is for these reasons that the MPS does not allow staff to work from home permanently”? 6.1.12 On 27 September 2023 on being informed by the claimant’s mother that the claimant was in hospital, did Ms Vacher respond that the respondent could not guarantee that the meeting would not go ahead in his absence? 6.1.14 On 17 October 2023 did Mr Norris refuse to refer the claimant to OH on the grounds that he was awaiting test results? 6.1.15 On 29 January 2024 did Ms Giles suggest ill health retirement? 6.1.18 On 27 February 2024 did Ms Giles repeat the misinformation / lie that the respondent does not support permanent home working?

6.2 If so, was that unwanted conduct?

6.3 Did it relate to disability?

6.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

6.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 7 Remedy for Discrimination

7.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

7.2 What, if any, financial losses has the discrimination caused the claimant?

7.3 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

7.4 If relevant, did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?7.4.1 If so, did the respondent or the claimant unreasonably fail to comply with it?

7.4.2 If so is it just and equitable to increase or decrease any award payable to the claimant?

7.4.3 By what proportion, up to 25%?

7.5 Should interest be awarded? How much?

[8]The Claimant confirmed that he was not seeking to amend his claim to add anything from his letter of 4 September 2024 referred to on pages 84-86 of the main bundle.

[9]EJ Perry disclosed that he was on occasion instructed for preliminary hearings by the Police Federation and less often by the Commissioner. Neither side objected to his continued involvement in the case and he did not feel the need to recuse himself. The Respondent sought postponement of the hearing due to fears about going part heard. This application was rejected for the reasons given orally to the parties.

The facts

[10]Many of the facts in this case are not disputed.

[11]The Claimant joined the Metropolitan Police force on 12 November 2001 as an Administrative Officer. The Claimant has been a witness care officer based in the South East Witness Care Unit at Marlowe House in Sidcup since August 2003. The role of a Witness Care Officer involves liaising with victims and witnesses of crime, the courts, and police officers regarding upcoming trial dates. Contact with those various groups is by phone, text, and email.

[12]The Respondent’s Flexible Working Policy in effect before 2025 stated in respect of police staff that flexible working could not include permanently working away from a usual work location but staff could apply for working from home on a routine/regular basis but that this was not suitable for every type of role. We were not provided with any specific policy on reasonable adjustments but were provided with the College of Policing’s guidance for managers on Flexible Working in the Police Service, which does envisage the possibility of permanent home working.

[13]The Claimant was diagnosed with Multiple Sclerosis in December 2013. Until the start of the Covid pandemic in 2020 the Claimant attended work at Marlowe House. Ms Vacher was the Claimant’s line manager and Mrs Scott was Ms Vacher’s line manager. Mr Milligan was Mrs Scott’s line manager.

[14]In March 2020 on the outbreak of Covid, the Claimant was authorised to remain at home due to his weakened immune system.

[15]The Claimant’s role was deemed suitable for home working. The Claimant was provided with a laptop in April 2020 and started to work from home.

[16]The Claimant attended Occupational Health on 24 September 2020 for an assessment related solely to Covid. The Claimant was described as having “several medical conditions impacting on being likely to develop more severe symptoms in case of infection with SARS-Cov-2.”

[17]As a result of being clinically extremely vulnerable, the Claimant was permitted to remain at home when other officers began to return to police premises from the end of 2020.

[18]The Claimant attended Occupational Health on 3 August 2021. The conclusions of this assessment were that, due to the Claimant’s inability to have the Covid vaccine, the Claimant remained clinically extremely vulnerable and should continue to work from home.

[19]In July 2022 the Respondent issued guidance regarding vulnerable individuals assessment processes which included some staff returning to police premises subject to individual assessments.

[20]The Claimant attended Occupational Health (“OH”) on 4 November 2022. The questions posed of OH were when the Claimant would be able to return to the office and what could be done to make his return as easy as possible. The conclusions were that the Claimant would benefit from “continued agile working” due to being extremely clinically vulnerable or “long term redeployment into an agile working role if possible.” OH sought to close the file. The Claimant continued to work from home.

[21]On 17 November 2022 Ms Vacher emailed the Occupational Health general mailbox asking whether “agile” working included working in the office (which was the Respondent’s definition) or solely working from home. Ms Vacher explained there would not be an expectation to return to the office full time and asked whether this, together with a phased return to the office, would make any difference to the assessment.

[22]On 1 December 2022 the Occupational Health adviser, Temi Oni, replied referring to the August 2022 report and requesting a new referral to “the OHP” for specialist consideration.

[23]On 6 December 2022 the Occupational Health adviser confirmed by email that agile working meant “flexible working arrangements, ie from home” and that the Claimant would benefit from a further OHP referral if he was required to attend work on a blended working pattern.

[24]On 15 December 2022 Mrs Scott contacted Zac Norris HR Case manager in shared services asking for advice, asking whether OHP was different to OH and asking why a new referral was needed. Mrs Scott said matters were going in circles.

[25]On 16 December 2022, Mr Morris emailed Temi Oni to state that agile working included working from the office stating that there were no entirely homeworking roles in the MPS (being Metropolitan Police Service). He asked for advice on measures to support the Claimant and allay anxiety about safely returning to work, which he said had been requested in the original referral.

[26]On 29 December 2022 Temi Oni replied that the previous OH advice had been for home working. She said blended working was a decision for managers to make.

[27]On 30 December 2022 Mr Morris again requested whether outstanding advice on facilitating a return to work could be obtained without a further referral.

[28]On 30 December 2022 Temi Oni replied that “if operationally feasible, Ed could return on a gradual blended pattern, i.e. 1-2 days office based and 3 from home.” In response to this Mr Morris aske Ms Scott to “work with this/discuss a basis to phase a return with Ed.”

[29]Ms Vacher called the Claimant on 17 January 2023. During this call, Ms Vacher said she had sought clarification from Occupational Health and that the reference to continuing agile working was suggesting that the Claimant should be working only partly from home. The Claimant was told he would have to return to work part time.

[30]The Claimant in his witness statement said Ms Vacher told him it was unfair on others in the office that the Claimant had not returned to the office whilst others with health conditions had. The Claimant said that it was not a case of one size fits all. The Claimant requested a further Occupational Health referral.

[31]The Claimant said in evidence that he felt pressurised to return to the office in this call and felt betrayed by a manager who had previously supported him.

[32]Later that day at 15:55 Ms Vacher emailed the claimant to confirm that Mr Norris’ view was that a further Occupational Health referral was not required as they had sought confirmation from the OH therapist. Ms Vacher forwarded the Claimant the chain of emails including Mr Morris and Temi Oni going back to 17 November 2022 and directed him to these. Mr Vacher suggested various adjustments including the Claimant possibly using Mrs Scott’s office and suggested a phased return to the office from 21 February

[33]The Claimant said in evidence that he felt pressurised to return to the office by this email and felt his managers were seeking to avoid a further OH referral in case it confirmed that the Claimant should not be returning to the workplace.

[34]Mr Norris replied to this email later on 17 January 2023 suggesting a risk assessment, which others had found reassuring.

[35]On 12 February 2023 the Claimant emailed Ms Vacher to note that his fears were shared by three separate doctors who had recommended working from home. The Claimant said he did not feel he would not be able to cope physically or mentally in the office and to be allowed to work from home. He said working from home full time for the time being was the only option for the Claimant to feel safe.

[36]On 16 February 2023 Ms Vacher replied to the Claimant to say “we cannot support you continuing working from home without returning to the office.” She required the Claimant to attend work from the week commencing 6 March 2023. The Claimant was offered blended working and a phased return to the office with a risk assessment.

[37]On 20 February 2023 the Claimant emailed to formally request to work from home. The same day Ms Vacher replied to the Claimant to say “unfortunately there are currently no entirely homeworking roles within the MPS and the flexible working policy states that you cannot request to work entirely from home.”

[38]On 26 February 2023 the Claimant requested as a reasonable adjustment that he be allowed to work from home “exclusively for the foreseeable future”. The claimant identified himself as disabled under the Equality Act 2010 and stated his case on each of the factors which an employer may request a flexible working request and cited that he had been fulfilling his role from home for the last three years. The Claimant identified the adjustments and strategies he was able to rely on when working from home and repeated the concerns linked to his “Covid age.” The Claimant identified his main symptoms as fatigue, pain, continence issues and mobility problems.

[39]On 3 March 2023 Mr Norris emailed Ms Vacher and Mrs Scott stating that working from home affected staff and the quality of service provided. He pointed to the Claimant missing out on learning and development and increased supervision by management. He listed various reasonable adjustments that might assist with a return to work.

[40]On 22 March 2023 Ms Vacher replied to the Claimant rejecting his request and citing the flexible working policy which, she alleged, “specifically states that you cannot ask to work from home permanently.” This letter repeated many of Mr Norris’ concerns from his email of 3 March 2023 including alleging an impact on managers, colleagues, and the quality of service provided to the public as well as the claimant missing out on learning and development from working with colleagues. The letter set out the various adjustments that the Respondent could put in place for the Claimant. The letter stated there would need to be a further referral to Occupational Health due to the Claimant raising health issues Ms Vacher was not aware of and said that the Claimant could continue to work from home until receipt of that advice.

[41]The Claimant says this email caused him a great deal of distress.

[42]In late March 2023 David Parrock, branch secretary for the PCS Union started corresponding with Ms Vacher regarding the Claimant. The correspondence was passed to Mrs Scott, who replied on 31 March 2023. The ongoing exchanges were passed to Mr Norris for advice on 11 April 2023 and he became involved in the exchange. Mr Parrock stridently put the case for the Claimant working from home on an ongoing basis. Mr Norris in an email on 12 April 2023 on which the Claimant was not copied, referred to “early ET results for homeworking cases … finding in favour of the employer as it’s often not reasonable to grant open ended home working arrangements.”

[43]The Claimant commenced Early Conciliation on 11 April 2023.

[44]The Claimant raised a grievance on 18 April 2023, which was similar in scope to the contents of the claim form in this case up to that point. There was an informal resolution summary produced for this grievance on 30 May 2023, which suggested that the Claimant had agreed to mediation with Ms Vacher.

[45]The Early Conciliation Certificate was issued on 2 May 2023.

[46]The Claimant’s ET1 was submitted on 12 May 2023.

[47]On 24 May 2023 OH assessed the Claimant and confirmed that the Claimant “suffers with severe mobility issues due to weakness in his legs, stiffness and poor balance… widespread pain and continence issues…fatigue and dizziness with exertion”. The report listed that the Claimant “due to fatigue … requires a nap mid-way through his working day.” The conclusion of the report was “his conditions post significant restrictions to his mobility, energy levels, physical capacity and general function. It is my view that the advantages and flexibility afforded from working from home enable his function in his role. It is my view that Mr Kelly is not medically fit to undertake the demands of working from the office as there is a loss of flexibility required to adequately manage his conditions, whilst working.” It went on to say, “If attendance to the office is a key requirement of the role, Mr Kelly will therefore be ultimately unfit.” It listed redeployment as a possibility.

[48]On 13 June 2023 Andy Milligan emailed Mr Norris to say “I do not believe this is an MO10 issue any longer but a MPS corporate one as to whether the MPS will allow officially for Ed to work from home permanently.” The Claimant says this shows Mr Milligan had no issue with the Claimant working from home. Mr Milligan’s explanation is that he had already explained why he thought it did not work but wanted to understand the MPS’s wider position and was struggling to get clarity.

[49]On 14 June 2023 Mrs Scott emailed the Claimant to say that she continued to support working from home at present and that Mr Milligan was seeking clarity about the MPS’s position on working from home permanently. Mrs Scott said she had been unaware until seeing the most recent OH report that the Claimant needed a nap during the day.

[50]On 19 June 2023 Mark Rowntree, Senior HR Policy Lead wrote in an email to Paul Doyle, a colleague in HR, that “the business can’t accommodate ongoing WAH and want him back and he’s been offered agile arrangements. If we place him in the HRC process he’ll continue to do work, which in the unlikely event of securing a WAH role, may well give him more of an argument for continuing to work at home. I don’t see any option but to place him into HRC and we argue our rationale at any forthcoming ET?”

[51]The Claimant was absent on sick leave between 24 July 2023 and 3 November 2023.

[52]Mr Milligan explained to Mr Parrock and Sara Lewis at a meeting on 3 August 2023 the reasons why he felt the Claimant’s request to work from home permanently was not possible. During August 2023 there were discussions about a case conference to discuss this. Two possible dates were cancelled due to the Claimant’s ongoing sickness absence.

[53]On 12 September 2023 a case conference took place in the Claimant’s absence after Mrs Scott sent him the wrong time for the meeting. At this hearing, the case for not allowing ongoing permanent working from home was stated by Mrs Scott to be due to managers being unable to listen to the Claimant’s calls with the public especially difficult calls, lack of opportunity to monitor wellbeing in the context of exposure to trauma, as well as concerns about the handling of possible complaints and inability for the Claimant to pass on his expertise to colleagues. There was some brief discussion of the possibility of using teams. There was discussion of efforts being made to get staff with chronic conditions back to work and that this had been successful. There was brief discussion of health-related capability procedures and ill health retirement.

[54]On 13 September 2023, after the Claimant emailed asking for the hearing the day before to be declared “null and void”, the case conference was rescheduled for 27 September 2023.

[55]On 27 September 2023, the Claimant was admitted to hospital with chest pains. The Claimant’s mother called Ms Vacher to inform her that the Claimant would not attend and asked for the conference to be rescheduled. Ms Vacher told the Claimant’s mother that she could not guarantee it would be rescheduled. In the event, the conference did not go ahead. The Claimant’s mother did not tell him about the contents of the call with Ms Vacher until the following day.

[56]The Claimant felt this was an attempt to kick him when he was down and showed no consideration for his health and wellbeing.

[57]The case conference was rescheduled for 17 October 2023, and took place in the Claimant’s absence. At this conference, there was discussion of the Claimant’s recent serious medical issues and the fact that the Claimant was awaiting tests and the results of a neurological scan. Mr Norris and/or Ms Vacher confirmed that they did not consider a further OH referral appropriate at that time due to the Claimant awaiting the results of those further tests. The notes do not record Mr Parrock objecting to this course of action. In the event, a further referral to OH was made.

[58]On 31 October 2023, Mrs Scott retired. Ms Denise Giles took over supervision of the Claimant’s ongoing discussions with the Respondent regarding returning to work or permanent working from home.

[59]On 17 November 2023, the Claimant met with Ms Patel to discuss his grievance. Ms Patel met with Ms Vacher on 21 November 2023. Ms Vacher confirmed there had never been issues with the Claimant’s performance.

[60]In mid-December 2023, Ms Vacher retired.

[61]In December 2023, the Claimant was provided with a response to a Freedom of Information Act request, which confirmed that there was an option to record working from home on the HR systems and that there may be local arrangements with managers. This confirmed 30.33 people were recorded as working from home but this was caveated as “likely to be a very unreliable figure.”

[62]On 21 December 2023, the further OH report, which referred to the Claimant’s upcoming medical appointments and stated that it could add no further recommendations at present. OH sought to close the case pending any future referral.

[63]On 11 January 2024 Ms Giles spoke to the Claimant by telephone. Ms Giles told the Claimant that the Respondent “does not support permanently working from home, and the expectation [was] that you are to return to the office.” The Claimant said that reasonable adjustments should be considered on a case by case basis rather than based on a general organisational stance.

[64]On 29 January 2024, Ms Giles emailed the Claimant regarding the notes of their call on 11 January 2024. Ms Giles confirmed there was no space for the Claimant to work at Catford Police station but that there was a quiet room which might or might not meet the Claimant’s requirements. The email also recorded that there were three choices: returning to Marlowe House, ill health retirement or the health capability process. In relation to ill health retirement, Ms Giles noted that the Claimant had already stated he did not want this.

[65]The Claimant felt this was harassment to return to the workplace against OH advice.

[66]On 7 February 2024 the Claimant’s grievance concluded. The outcome was that the Claimant had been offered reasonable adjustments and flexibility to assist a return to work. The outcome stated both that the “Met does not support permanent working from home” and that “the organisation has no roles which enable employees to work from home on a permanent basis.”

[67]On 21 February 2024 the Claimant appealed the outcome of his grievance.

[68]A further case conference took place with the Claimant in attendance on 27 February 2024. At this hearing it was confirmed that there was no space for the Claimant to work at Catford police station. The Claimant restated his desire to work from home. Ms Giles said she had previously explained that currently the MPS did not support staff working permanently at home. Mr Norris said there was a clear steer from the Commissioner and various members of management boards to conclude home working. The Claimant raised the question of his calls being supervised via MS Teams and said calls had never previously been listened to. The Claimant said teams would be better than observing the Claimant in a segregated section. The Claimant raised the result of his FOIA request. It was agreed to take the matter back to Andy Milligan to see what the response would be.

[69]The Claimant felt Ms Giles was repeating misinformation about the availability of home working.

[70]At the preliminary hearing on 2 April 2024 the Claimant was given permission to amend his claim including to include several allegations post dating the submission of the claim form.

[71]On 8 April 2024 the Claimant grievance appeal was not upheld.

[72]On 29 April 2024 Mr Milligan wrote to the Claimant to confirm his response to the referral agreed at the meeting on 27 February 2024. Mr Milligan stated that his understanding was that the FOIA data provided was incorrect. Mr Milligan confirmed he was declining the Claimant’s request to work from home permanently, he referred to the flexible working and blended working policies. Mr Milligan confirmed that his reasons for considering it not reasonable for the Witness Care Officer role not being permanently from home were: line management needing the opportunity to view the Claimant’s calls with the public, especially difficult calls, and that the only way this could reasonably be done was in person; the ability to monitor wellbeing when receiving calls; potential liability issues regarding complaints; the expectation for knowledge sharing; the need to run ad hoc training or meetings at work; and the commissioner’s vision for supervision and development of staff. Mr Milligan referred to options of ill health retirement and the health and capability process. Mr Milligan concluded with a request for the Claimant to return to work in the office in the week commencing 3 June 2024.

[73]There was a further conference regarding the Claimant’s return to work on 21 May 2024. On 3 June 2024 Mr Milligan confirmed the request to return to work was again postponed.

[74]On 3 September 2024 Mr Milligan emailed the Claimant to confirm his view of why monitoring of calls via MS Teams was not practicable. This included that it placed an unreasonable and additional responsibility on a line manager to have their teams link to the Claimant live for the working day. Mr Milligan confirmed that there would be no further progress on the claimant’s return to work until the publishing of the new MPS Working From Home policy.

[75]Mr Kelly replied by email dated 17 September 2024 responding to Mr Milligan’s points regarding MS Teams. He stressed there had never been monitoring of calls before and that there would be no extra responsibility on managers compared to him being in the office as their microphone and camera would be switched off throughout.

[76]Mr Milligan replied on 31 October 2024 restating his position on the use of MS Teams.

[77]On 23 December 2024 the Respondent published a new policy on working from home. The Claimant’s position is currently being reviewed by a panel in line with this policy. The Law Reasonable adjustments

The Law

[78]Sections 20 and 21 and Schedule 8 Equality Act 2010 cover the duty to make reasonable adjustments.

[79]Section 20(3) states: “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[80]Section 21(1) and (2) state: “(1)A failure to comply with the first… requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

[81]Section 20 of Part 3 of Schedule 8 to the Equality Act states: “20(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— … (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… requirement.

[82]HHJ Eady QC in Carrera v United First Partners Research

UKEAT/0266/15

(7 April 2016, unreported) stated that 'the protective nature of the legislation meant a liberal, rather than an overly technical approach should be adopted' to the concept of a provision, criterion or practice.

[83]In Royal Bank of Scotland v Ashton

[2011] ICR 632

, Langstaff J held that 'an Employment Tribunal—in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination—must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.'

[84]Baroness Hale in the House of Lords decision in Archibald v Fife Council

[2004] IRLR 651

at paragraph 47, confirmed that the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs.

[85]The EHRC statutory code of practice on employment states “6.27 If making a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment. Suitable and sufficient risk assessments should be used to help determine whether such risk is likely to arise. 6.28 The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have 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. 6.29 Ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case.”

[86]Home working is listed as a potentially reasonable adjustment at paragraph 6.33 of the code.

[87]The EAT in Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar), is authority that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer. Harassment

[88]Section 26(1) Equality Act 2010 states “(1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

[89]Guidance on the level below which conduct does not engage the statutory definition was given by the EAT in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

and (in the context of the word “violating” and “intimidating” in Betsi Cadwaladr University Health Board v Hughes EAT 1079/13.

[90]Guidance on whether the effect of unwanted conduct amounts to harassment was provided by Lord Justice Underhill in Pemberton v Inwood

2018 ICR 1291

, CA where he stated: “a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances — sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so”

[91]When dealing with a series of alleged incidents of harassment, it is important not to carve up the allegations and only consider them one by one. It is important to stand back and have regard to the entirety of the conduct which is found to have occurred (Qureshi v Victoria University of Manchester

[2001] ICR 863

and Anya v University of Oxford

[2001] ICR 847

[92]This is important when considering whether it would be reasonable to regard the conduct as having the prohibited effect and whether to draw inferences that the conduct was related to the protected characteristic. (Reed v Steadman

[1999] IRLR 299

(Morison P) and Rihal v London Borough of Ealing

[2004] IRLR 642

[93]The requirement is for conduct to be 'related to' disability. The Court of Appeal in UNITE the Union v Nailard

[2018] IRLR 730

is authority that action 'because of the background of harassment related to sex' does not amount to harassment. Where an action is not in itself evidently discriminatory, the Tribunal may need to make findings as to the mental processes of the alleged harasser and whether they had been motivated by discrimination. That is not to suggest that it must be a causative link, it may be associative.

[94]In his written submissions, the Claimant referred us to a first instance decision in Mr T Ahmed v The Commissioner of the Police of the Metropolis: 2209280/2023. We read this judgment and discussed it during deliberations. However, the fact sensitive nature of cases such as this meant it was of somewhat limited benefit to us in deciding the issues in this case. Conclusions Harassment 6.1.4 On 17 January 2023 Ms Vacher lied when she informed the Claimant that OH had informed her that the term “agile working” meant for the Claimant to return to work on a blended pattern.

Conclusions

[95]As set out above, we accepted that Ms Vacher did say to the Claimant that OH had confirmed this in her call on 17 January 2023. This was not an entirely accurate description of what Temi Oni had said on 6 December 2022. However, it was closer to what Ms Oni had said on 30 December 2022, namely that the Claimant could return on a gradual blended pattern.

[96]We do not accept that this was a lie from Ms Vacher, rather it reflected her and the Respondent’s interpretation of the advice from OH as it had evolved. We note that Ms Vacher later the same day provided the Claimant with the full email exchange with OH suggesting no intention to deceive.

[97]Ms Vacher’s comment was unwanted conduct. Having regard to the that it was related to disability at all. This was said simply because it was Ms Vacher’s understanding of the advice she had received. The fact that the background of the comment being said was in responding to a request for adjustment in relation to disability does not mean it was related to disability on a causative or associative basis.

[98]If we are wrong about this, we do not consider that the intent was to harass or that it was reasonable for this comment to have the prescribed effect on the Claimant even taking into account his subjective feeling that he felt let down by Ms Vacher and pressured to return to work. It was a statement of the nature of the advice provided that it was reasonable for Ms Vacher to believe. 6.1.5 On 17 January 2023 Ms Vacher and/or Mr Norris declined the Claimant’s request for another OH referral.

[99]The Claimant is clearly correct both that he did ask for a referral and that the Respondent declined this.

[100]We accept that this was unwanted by the Claimant. Again, having regard to the guidance in Nailard, the rejection was not, of itself, obviously related to disability. We do not consider that, having regard to the mental processes of Ms Vacher or Mr Norris, it was related to disability at all. Rather, they believed that there was no need for a further referral as they felt they had clarified whether the advice was that the Claimant was able to work partly at home and partly from the office. This view was justified on the basis of the correspondence because Ms Oni had changed her position from on 6 December 2022 saying that the Claimant would benefit from a referral to the OHP to on 30 December 2022 saying a further assessment would be required if further issues arose on a return to work. The fact that the background of the action was in responding to a request for adjustment in relation to disability does not mean it was related to disability on a causative or associative basis.

[101]If we are wrong about this, we do not consider that the intent was to Claimant even taking into account his subjective feeling that he felt his managers were seeking to avoid a further OH referral in case it confirmed that the Claimant should not be returning to the workplace. It was a legitimate approach for the Respondent to take that it felt it did not require a further OH referral so soon after the clarification of the previous advice. 6.1.7 On 22 March 2023 Ms Vacher lied /misinformed the Claimant when she stated “I would also like to refer you to the MPS flexible working policy (link below) that specifically states that you cannot ask to work from home permanently… it is for these reasons that the MPS does not allow staff to work from home permanently.”

[102]The Respondent’s policies in place at the time are summarised above. In short, Ms Vacher did not lie or misinform the Claimant when she described the Respondent’s policies in a generally accurate manner. Moreover, Ms Vacher provided the Claimant with a link to the policies, which the Claimant was able to follow to confirm the position for himself.

[103]Ms Vacher’s comment was unwanted conduct. Having regard to the that it was related to disability at all. This was said simply because it was Ms Vacher’s understanding of the Respondent’s policies as they were explained to her. The fact that the background of the comment was in

[104]If we are wrong about this, we do not consider that the intent was to Claimant even taking into account his subjective feelings of distress on reading this letter. The letter contained a reasoned explanation for why the Claimant’s requested adjustment could not be accommodated. There was nothing in that response including the reference to the Respondent’s policy that was capable of reasonably creating the proscribed effect for harassment. 6.1.12 On 27 September 2023 on being informed by the claimant’s mother that the claimant was in hospital, Ms Vacher responded that the respondent could not guarantee that the meeting would not go ahead in his absence?

[105]There is no dispute that Ms Vacher did inform the Claimant’s mother that she could not guarantee that the meeting would not go ahead in the Claimant’s absence.

[106]Ms Vacher’s comment was unwanted conduct. Having regard to the that it was related to disability at all. This was said simply because there had been several attempts to conduct the meeting with the Claimant in attendance and because the call was placed only shortly before the meeting was due to take place. The fact that the background of the comment was in

[107]If we are wrong about this, we do not consider that the intent was to Claimant even taking into account his subjective feelings that this was an attempt to kick him when he was down and showed no consideration for his health and wellbeing. It was a reasonable response to the Claimant’s late cancelation of his attendance at the meeting. In any event, the meeting ultimately did not go ahead on that day. 6.1.14 On 17 October 2023 Mr Norris refused to refer the claimant to OH on the grounds that he was awaiting test results?

[108]There is no dispute that Mr Norris and/or Ms Vacher confirmed that they did not consider a further OH referral appropriate at that time due to the Claimant awaiting the results of further tests.

[109]This was unwanted conduct. Having regard to the guidance in Nailard, it was not, of itself, obviously related to disability. We do not consider that, having regard to the mental processes of Mr Norris or Ms Vacher that it was related to disability at all. This was said simply because there was no point in referring the Claimant to OH when serious test results were outstanding as any OH appointment held before receiving those test results would be largely pointless. Indeed, this was the outcome when the referral was made shortly thereafter. The fact that the background of the refusal was in

[110]If we are wrong about this, we do not consider that the intent was to Claimant even taking into account his subjective feelings. It was a reasonable response to the circumstances at the time. We note that it was a decision reached in a meeting with the Claimant’s union representative, who does not appear to have objected. 6.1.15 On 29 January 2024 Ms Giles suggested ill health retirement?

[111]There is no dispute that Ms Giles did list this as an option in her email summarising the discussion on 11 January 2024.

[112]This was unwanted conduct. Having regard to the guidance in Nailard, it was not, of itself, obviously related to disability. We do not consider that, having regard to the mental processes of Ms Giles that it was related to disability at all. This was said simply because it was one of the options that might be relevant for someone in the Claimant’s situation. The fact that the background of the comment was in responding to a request for adjustment in relation to disability does not mean it was related to disability on a causative or associative basis.

[113]If we are wrong about this, we do not consider that the intent was to Claimant even taking into account his subjective feelings that this was harassment to return to the workplace against OH advice. It was reasonable for Ms Giles to list this as an option. We note that Ms Giles recorded in the email that ill health retirement was not an option the Claimant wanted to consider. There was no attempt to pressure him to take this option but it was an option. 6.1.18 On 27 February 2024 Ms Giles repeated the misinformation / lie that the respondent does not support permanent home working?

[114]The Respondent’s policies in place at the time are summarised above. As with Ms Vacher in January 2023, Ms Giles did not lie or misinform the Claimant when she described the Respondent’s policies in a generally accurate manner.

[115]Ms Vacher’s comment was unwanted conduct. Having regard to the do not consider that, having regard to the mental processes of Ms Giles that it was related to disability at all. This was said simply because it was Ms Giles’ understanding of the Respondent’s policies as they were explained to her. The fact that the background of the comment was in responding to a request for adjustment in relation to disability does not mean it was related to disability on a causative or associative basis.

[116]If we are wrong about this, we do not consider that the intent was to Claimant even taking into account his subjective feelings that Ms Giles was repeating misinformation about the availability of home working. The meeting was part of an ongoing dialogue with the Claimant about his request to work permanently from home. At the end of the meeting, it was agreed to make a further request to Mr Milligan for a response to the contents of the discussion. There was nothing in that meeting including the reference to the Respondent’s policy that was capable of reasonably creating the proscribed effect for harassment.

[117]Having examined the individual allegations, none is found to have amounted to harassment. In reaching this conclusion the Tribunal stood back and had regard to the entirety of the conduct which is found to have occurred when considering whether it would be reasonable to regard the conduct as having the prohibited effect and whether to draw inferences that the conduct was related to the protected characteristic. As to relationship to the protected characteristic, we find nothing from the overall picture that justifies drawing any inference that the conduct was related to the protected characteristic. As to the prescribed effect, we acknowledge that, for example, the Claimant complains about being given the same information about the MPS’s policy on more than one occasion. This may have increased his feelings of frustration beyond a single incident. However, when looking at the overall picture we are struck that the Respondent both allowed the Claimant to continue to work from home throughout the time in question and engaged in detailed discussions with the Claimant about the reasons why it was not prepared to support an indefinite period of working from home. We do not find that the overall picture supports the Claimant’s harassment claims.

[118]The Claimant’s harassment claim therefore fails and is dismissed. Failure to make reasonable adjustments

[119]The Respondent did have a PCP of expecting staff to be able to attend the office. Whether this was strictly for two days or less is largely immaterial.

[120]This PCP did put the Claimant at a substantial disadvantage because his health issue made it harder for him to attend the office. The Respondent was aware of this disadvantage.

[121]The key question is whether the Respondent failed to take any reasonable step to avoid the disadvantage.

[122]The EHRC Code sets out that working from home or an alternative location can be a reasonable adjustment.

[123]As a matter of fact the Claimant has been allowed to work from home for 5 years seemingly without incident. The Respondent has raised several reasons why it is not reasonable to have to agree to this arrangement continuing indefinitely.

[124]The Respondent cites issues with training and development and inability to interact with other members of the team. We are not persuaded that this has much force. The Claimant is an experienced member of staff and has worked from home for 5 years without any issues with the quality of his work. We accept the Claimant’s evidence that he can contact colleagues if he needs to discuss work related technical matters. The Claimant is only one individual and it will not significantly impact others if they are unable to learn as much from him as they would do in person. There are other ways the Claimant could be encouraged to pass on his knowledge such as him mentoring or giving training to new members of staff remotely.

[125]The Respondent cites issues with supervising the Claimant’s work and observing him interacting with the public. The Claimant says this has never been done before (including when he was physically in the office) and that it could in any event be done by MS Teams. The Respondent says that process would not replicate the real life observation of the Claimant at work and would put too great a burden on its managers. We consider that supervision does take place and for good reason. The Claimant may never have been aware of it as it may be light touch and he does not appear to have struggled with performance. We accept that some supervisory needs could be met remotely including using MS Teams but that this would be less effective than observing the Claimant at work and would increase the burden on managers to be observing the Claimant via a computer link when they also have other work to do.

[126]Finally, the Respondent refers to concerns about exposure to traumatic events due to contact with victims of crime and the inability to observe the Claimant to ensure his welfare. The Respondent refers to para 6.27 in the EHRC statutory code that it is a relevant factor to consider whether a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question). The Respondent is concerned that the Claimant might seek to play down any such concerns in order to avoid endangering his right to continue to work remotely. Again, whilst there are some ways in which this issue could be addressed remotely (including welfare visits, if necessary, in person at the Claimant’s home) we accept the Respondent’s assertion that this would be cumbersome to administer and less effective from a distance. We think, in part because of the specific reference to this concern in the EHRC Code, that is the strongest argument the Respondent has raised against it being reasonable to grant an open ended extension of the working from home arrangement.

[127]We are not completely satisfied, based on the evidence before us, that, were it a question of the Claimant losing his employment or being able to continue in some form of working from home, it might not be reasonable for the Respondent to have to agree to such an adjustment notwithstanding the concerns it has expressed before this Tribunal. We think it unlikely that it would be reasonable for that to have to be entirely open ended in duration and that there would need to be planning to address the Respondent’s concerns as far as possible and regular reviews.

[128]However, that is not the position for the period of time in question in this case. The fact is that the Claimant has been and continues to be allowed to work from home, albeit on a series of short term extensions and with the Respondent’s caveat that they do not consider this possible indefinitely. The latest of these extensions is pending a decision by the review panel under the Respondent’s new working from home policy. This decision may be supported by a further OH referral, should the Claimant agree to one.

[129]In the circumstances of this case (and in particular the time frame in question), we consider that the short term extensions allowing the Claimant to work from home that the Respondent has agreed to are a reasonable step that has alleviated the disadvantage the Claimant would otherwise suffer as a result of the PCP and that agreeing to an open ended arrangement for the Claimant to work from home indefinitely would not have been reasonable because of the Respondent’s genuinely held and legitimate concerns about this arrangement continuing indefinitely, particularly as to supervision and the Claimant’s welfare.

[130]The Claimant has not put his case on working from an alternative office as a reasonable step including the police station in Catford with any real force. We note that the Catford station is no longer within the MPS estate and would seem not to be a practicable option. It would seem that any move to an office away from managers and the rest of his team would not meet management’s legitimate concerns in relation to supervision and welfare. On that basis, we do not find that this would be a reasonable step to take. We do note that as the Claimant’s case and evidence before this tribunal was that he might consider working from an alternative office, there might be some scope for the Claimant to consider a trial of some adjustments less than indefinite home working to gauge their effectiveness. How realistic that is would need to be considered in light of medical advice, including a possible further OH report.

[131]The Claimant’s claim for failure to make reasonable adjustments fails and is dismissed. Approved by