Miss T Henderson v Chief Constable of Greater Manchester Police: 2400685/2024
JUDGMENT
[1]The Tribunal does not have jurisdiction to consider the complaint of detrimental treatment on the grounds of making protected disclosures because the complaint was presented out of time. This complaint is dismissed.[2]The Tribunal does not have jurisdiction to consider the complaints of disability discrimination which were presented out of time. These complaints are dismissed. Approved by: JUDGMENT having been approved by the judge on 3 March 2026 but not having been given at the hearing and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following summary written reasons are provided:REASONS
[1]There is one alleged act of detrimental treatment on the grounds of making a protected disclosure, which is about what Inspector Atherton said to the claimant in October 2022. The exact date of the conversation is unclear.[2]The complaint is brought outside the normal time limit. ACAS early conciliation began on 22 November 2023, which is well after the primary time limit expired, so the period spent in early conciliation does not extend the time limit for presenting a claim. The primary time limit expired sometime in January 2023. The claim was presented on 29 January 2024, around a year late. The Tribunal, therefore, only has jurisdiction to consider this complaint if it was not reasonably practicable to present the claim in time and it was presented within a reasonable time after that.[3]We conclude that it was reasonably practicable to present the claim in time. The claimant knew about the treatment complained about at the time. She had access to advice if she wanted to find out about possible action she could take. Later on, she discovered what she needed to do by a simple Google search. There was nothing preventing her from finding out about her rights and acting on this information earlier.[4]Although we have concluded that we do not have jurisdiction to consider the complaint, we have gone on to consider what we would have decided, if we had had jurisdiction to consider the complaint.[5]We conclude that the claimant made a protected disclosure on 17 October 2022. We conclude she disclosed information when she expressed concern to Sgt Wilcock in the Driving School about Sgt Gregory driving too fast when responding to an incident the previous evening. We conclude that the claimant had a reasonable belief that the information tended to show that the health or safety of any individual had been endangered and that she had a reasonable belief that the disclosure of information was in the public interest. We accept that the claimant believed that there was a potential danger to the public due to Sgt Gregory driving at around 90 miles per hour in a 30 miles per hour zone. Although it was early in the morning and little was on the road, travelling at the speed Sgt Gregory was doing, in a van, he was unlikely to be able to stop in time if someone stepped into the road or someone pulled out in front of him, with the risk of serious injury or death.[6]When the claimant had a conversation with Inspector Atherton about this disclosure, we find that Inspector Atherton said that the claimant should have come to her first, rather than the Driving School and that if she had any concerns in future, she should go to Inspector Atherton first.[7]We conclude that the claimant reasonably felt that what Inspector Atherton said to her was to her disadvantage and was subjecting her to detrimental treatment. Under the respondent’s whistleblowing policy, the claimant was entitled to report concerns to suitable managers. Inspector Atherton accepted that a concern about driving too fast was something which could come under the Whistleblowing Policy and that a sergeant in the driving school was an appropriate person to whom to report a concern about driving. The Inspector was, in effect, attempting to restrict the claimant’s future legitimate routes to report concerns about matters within the scope of the whistleblowing policy.[8]The claimant having satisfied us she made a protected disclosure and that she suffered detrimental treatment, in accordance with s.48(2) ERA, it is for the respondent to show the ground on which Inspector Atherton said what she did. In accordance with case law, this means that the respondent must show, if the claim is not to succeed, that the protected disclosure did not materially (in the sense of more than trivially) influence the respondent’s treatment of the claimant.[9]We found that Inspector Atherton felt that she should have been the claimant’s first port of call should the claimant have any concerns in relation to the Sergeants or anyone else on the shift. What the Inspector said to the claimant, saying the claimant should go to her first, is inconsistent with the respondent’s own whistleblowing policy. In these circumstances, we do not consider the respondent has shown that the protected disclosure did not materially (in the sense of more than trivially) influence the employer’s treatment of the claimant.[10]If the Tribunal had had jurisdiction, we would have concluded the complaint was well founded. Disability discrimination complaints[11]There are potential time limit issues with all the complaints. We will return to the time limit issues after considering the merits of the complaints.[12]The respondent conceded, in its second amended response, that the claimant was disabled at relevant times by reason of ADHD.[13]The respondent has not formally conceded that it had knowledge of this disability at all relevant times but made no submissions to suggest it did not. From prior to the events relied on, the respondent had an occupational health report dated 28 July 2022, following an ADHD assessment, which informed them of the positive assessment that the claimant had ADHD and of the issues this caused for her. We conclude that, at all relevant times, the respondent had knowledge of the claimant’s disability. We will deal with knowledge of disadvantage, in relation to the PCPs relied upon, when we deal with the complaints of failure to make reasonable adjustments. Harassment related to disability 6.1.1 Did Sgt Beirne cancel 3 of the claimant’s ADHD meetings as he considered them to be a load of nonsense? Those being session 4 that was due to take place on 17 February 2023, session 6 that was due to take place on 14 March 2023 and session 8 that was due to take place on 27 March 2023.[14]We found that, on 17 February 2023, the claimant had difficulty connecting to the internet to attend the coaching session. She went to Sgt Beirne and told him of the problem. He told her to get on with other work and made comments which we deal with in relation to the complaint of harassment at 6.1.2. We conclude that Sgt Beirne did not cancel the meeting on 17 February. The claimant was unable to attend the meeting because she could not connect to the internet. From her evidence, the claimant seems to have thought that Sgt Beirne should have given her assistance to connect. However, this is not how the complaint to which the respondent was required to respond was put. The complaint in relation to the 17 February meeting, therefore, fails as the claimant has not made out the facts on which she relies.[15]In relation to the 14 March 2023 meeting, we found that Sgt Beirne had told the claimant that he wanted her to have her coaching meetings only on the last two shifts of the 6 so it did not interfere with prisoners. We found this was not just a suggestion, but an instruction. The claimant had to cancel the 14 March session because the shift pattern had just changed and the session on 14 March was not on one of the last two days. We conclude that Sgt Beirne’s instruction to have the meetings only on the last two shifts of the 6 did amount to an instruction to cancel a meeting, such as this one, which fell on one of the other days, due to a shift change. We conclude that this was unwanted conduct since the claimant valued the sessions and found these very helpful to her.[16]We conclude that the claimant has proved facts from which we could conclude this instruction was related to disability. These are Sgt Beirne’s dismissive and sarcastic comments about the meetings on 17 February 2023; his failure to discuss with the claimant any reasonable adjustments that needed to be made; and asking Sgt Gregory whether the meetings had to take place in work time when the times and dates of the meetings, arranged and paid for by the respondent, had already been set by the time the claimant joined Sgt Beirne’s team. We conclude that the burden of proof shifts so it is for the respondent to show that the treatment was not, in any material sense, related to disability. We conclude that the respondent has not satisfied us that Sgt Beirne’s instructions were in no material sense related to her disability. We did not accept Sgt Beirne’s evidence that this was a suggestion, rather than an instruction. We conclude that the cancellation on that day was related to disability.[17]We conclude that the instruction having the effect of cancelling the meeting on 14 March 2023 had the requisite effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading , humiliating or offensive environment for the claimant. Given the dismissive and sarcastic remarks Sgt Beirne made about the meetings on 17 February 2023, we conclude it was reasonable for the cancellation of the meeting on 14 March 2023 to have this effect. In relation to the cancellation of the meeting on 14 March 2023, subject to the time limit issue, we would conclude the complaint is well founded. We will return to the time limit issue later.[18]In relation to the meeting on 27 March 2023, we found that Sgt Beirne’s instructions on 27 March 2023 to work on an investigation and arrest a suspect had the effect that the claimant was unable to attend the ADHD appointment which Sgt Beirne was aware was scheduled on that day. We conclude that Sgt Beirne’s instructions on that day, with the knowledge of the claimant’s ADHD appointment, was, in effect the cancellation of that meeting. It was unlikely that the claimant would have been able to carry out the arrest and interview and still attend her meeting. We conclude that this was unwanted conduct since the claimant valued the sessions and found these very helpful to her.[19]We rely on the same matters in relation to the 14 March meeting and also the fact that Sgt Beirne ignored the claimant pointing out that she had her ADHD appointment that day in concluding that the burden of proof shifts to the respondent to prove that Sgt Beirne’s actions were not in any material sense related to disability. We did not accept Sgt Beirne’s evidence that he did not instruct the claimant to carry out the arrest that day. We conclude the respondent has not satisfied us that Sgt Beirne’s instructions were in no material sense related to her disability. We conclude that the cancellation on that day was related to disability.[20]For the same reasons as in relation to 14 March and additionally because, on this occasion, she attempted to explain she needed to attend the meeting and Sgt Beirne disregarded this, we conclude that the conduct had the requisite effect and it was reasonable for the cancellation of the meeting on 27 March 2023 to have this effect.[21]Subject to the time limit issue, we would conclude the complaint is well founded. We will return to the time limit issue later. 6.1.2 Did Sgt Beirne when cancelling the ADHD meeting due on 17 February 2023 make comments to the effect that the ADHD meetings were “a load of nonsense” and that “were you going to talk about how much energy you had, and that all you needed to do was write a list and get on with doing real police work”.[22]We did not find he had cancelled the meeting on that date; the claimant could not attend because she could not connect to the internet. However, we found that Sgt Beirne did make dismissive and sarcastic comments about the meetings as alleged.[23]We conclude that the comments constituted unwanted conduct.[24]We conclude that the comments were related to disability; they explicitly referenced behaviours related to ADHD and expressed a dismissive view of the value of the meetings intended to assist the claimant with matters relating to ADHD.[25]We conclude that the comments had the requisite effect and it was reasonable for them to do so. The comments were dismissive and hurtful.[26]Subject to the time limit issue, we would conclude the complaint is well founded. We will return to the time limit issue later. Discrimination arising from disability 7.2.1.In March 2023, told by Sgt Beirne that as she had taken so long to complete tasks she was being subjected to a punishment of staying behind and thinking about why it was taking her so long. This was whilst other officers were allowed to go home early. (D1).[27]As previously noted, the respondent has conceded disability and we have found that they had the requisite knowledge of disability from receipt of the OH report, before all relevant events.[28]We found that Sgt Beirne, on 21 March 2023, told the claimant to stay until the end of shift while others were allowed to go home early as a punishment because she had taken so long on tasks which he said should have been done much quicker. We found that the claimant was not bothered about working until the end of her shift but, as she told Chief Inspector Barton, she was shocked at her punishment, feeling like she was in school, and was embarrassed that everyone was saying goodbye and asking why she wasn’t coming. This adversely affected her self confidence.[29]We conclude that this was unfavourable treatment. Although she was not bothered about staying to the end of her shift, having things to do before going on leave the next day, she was told this was a punishment because of taking so long to do work, causing her embarrassment and adversely affecting her self confidence. We conclude that this was detrimental treatment.[30]The “something arising” relied on for this complaint is that it took the claimant longer to complete work tasks. We find that the claimant did take longer to complete work tasks. The OH report recommended that the claimant be given additional time to complete tasks. We conclude that taking longer over tasks was something arising from her disability.[31]We conclude that the treatment arose in consequence of the something arising. Sgt Beirne told her she had to stay as a punishment for taking so long on work tasks.[32]The pleaded legitimate aim in relation to this complaint is “ensuring that the work required by police officers was done within the officer’s tour of duty” (para 83 of 2nd amended GOR p.129). It is not, as set out in the respondent’s submissions, “promoting public safety”. We conclude that the pleaded aim could be a legitimate aim. However, we heard evidence from Sgt Gregory, in particular, that it was quite frequent that administrative work relating to matters done on one day would have to be completed the next. Even if this was a relevant legitimate aim, we conclude that keeping the claimant at work after others as a punishment for not working more quickly was not a proportionate means of achieving this aim.[33]Subject to the time limit point, that complaint succeeds. 7.2.2 Subjecting the claimant to a 21 month probation period rather than a 24 month probation period, which the claimant would struggle with. The claimant’s position is that she required more time than others, and subjecting her to a shorter period was unfavourable treatment (D2).[34]This refers to the milestones set by Sgt Bannister in the meeting on 22 February 2023 when the claimant was placed on a development plan. The probationary period was 24 months but could be extended in some circumstances. Completion of the portfolio was necessary to successfully complete probation. We found that Sgt Bannister commonly applied such milestones for officers on development plans. This was an aid to trying to ensure that officers made progress with their portfolios. At this stage the claimant had submitted no work towards her portfolio.[35]We are not satisfied that imposing such milestones was unfavourable treatment.[36]The “something arising” relied on for this complaint is that it took the claimant longer to complete work tasks. Since the claimant had submitted no work at all for her portfolio at this stage, we are doubtful that giving her such milestones was because of this something arising.[37]Even if we had decided this was unfavourable treatment because of the something arising in consequence of disability, we would have concluded that giving the claimant these milestones was a proportionate means of achieving a legitimate aim. The pleaded legitimate aim for this complaint is ensuring that student officers are able to complete their portfolio in the standard 24 month time frame or such further time as it is extended to. The milestones were to try to ensure progress with the portfolio. If the student officer was making progress but not completing the amount set for each milestone, despite working hard, Sgt Bannister could adjust the milestones and, if necessary, apply for an extension of the probationary period. He would not apply for an extension until shortly before the end of the normal probationary period.[38]For these reasons we would conclude that the complaint does not succeed on its merits if we have jurisdiction to consider the complaint. 7.2.3 In March 2023, told by Sgt Beirne that she wasn’t a team player sitting on her own, and that she should be sitting with her team (D3).[39]The claimant did not satisfy us, on a balance of probabilities, that this occurred as alleged. If we had jurisdiction to consider this complaint, this complaint would fail on its merits. 7.2.4 Subjecting the claimant to completion targets for her diploma that others were not subjected to. Namely, having to complete 10% of her diploma each month, followed with a threat of a Regulation 13 action if she did not meet her target in the second month (D4).[40]The claimant was given these milestones. She was also told of the possibility of regulation 13 action if she did not meet targets. Sgt Bannister gave an example that, if by the second milestone, the claimant had still not completed any work towards her portfolio or only 3-5%, he would be starting to think about regulation 13. He explained about regulation 13 action, which could ultimately lead to dismissal, as was his practice when putting any student officer on a development plan with such milestones.[41]We conclude that this was unfavourable treatment even though we accept that Sgt Bannister imposed the same targets on other officers he placed on development plans and also spoke to other officers about the potential for regulation 13 action if sufficient progress was not made. Unfavourable treatment does not require a comparison with others. We conclude it was unfavourable because it placed the claimant under pressure and caused anxiety about whether she would be able to achieve the milestones, particularly given the difficulties she had due to ADHD.[42]The pleaded “something arising” for this complaint is that the claimant found it hard to start a new task. We conclude that the treatment was because of this something arising. The claimant had not started her portfolio, which caused Sgt Bannister to decide to apply the milestones and place the claimant on a development plan.[43]We conclude, however, that the treatment was a proportionate means of achieving a legitimate aim. The pleaded aim is ensuring that student officers are able to complete their portfolio in the time allocated and that there is sufficient time for any other measures to be taken, including extensions. We conclude that this is a legitimate aim and the treatment was a proportionate way of achieving this aim.[44]For these reasons we would conclude that the complaint is not well founded if we have jurisdiction to consider the complaint. Reasonable adjustments 8.2.1 PCP1 - A practice after having been on a job, being required to complete all necessary paperwork as soon as possible, with an officer not being allowed to finish a shift before all paperwork was completed[45]We conclude that PCP1 was applied. We found that there was a general expectation that paperwork relating to incidents would be completed on the same day, by the end of the shift. There would be exceptions, but this does not prevent there being such a practice.[46]We are not satisfied the claimant was put at substantial disadvantage by this PCP when working for Sgt Gregory because new work was not allocated until other work completed, as was his practice with all probationers. However, we conclude that the PCP put her at a substantial disadvantage once she was in the DIT team, compared to people without her disability. She was slower than people without ADHD at completing tasks, meaning she was not completing tasks before being allocated others, which also put her at greater risk of performance management. We heard from Sgt Beirne that the claimant was carrying more work than others because she was not closing crimes. As we have found, on 21 March 2023, Sgt Beirne punished her for working more slowly than he thought she should. Part of the reason for being put on a development plan was because of her performance at work under Sgt Beirne.[47]Given the contents of the OH report, we conclude the respondent knew or ought reasonably to have known the claimant would be at a disadvantage because of this PCP compared to people without her disability.[48]The duty to make reasonable adjustments, therefore, arose.[49]The claimant says the reasonable adjustments should have been giving her more time to complete work tasks and limiting the number of tasks allocated to her at any one time and allowing additional time to complete a task before new tasks were allocated.[50]Whilst in the DIT team, we conclude it would have been reasonable to give her more time to complete tasks and to limit tasks at this early stage, until she had gained confidence and competence in the role or had a reasonable further opportunity to do so. Given the difficulties due to ADHD, it was going to take the claimant longer to reach this stage than other officers.[51]We conclude that, subject to time limit issues, we would have concluded that PCP2 - A practice of working in an office where there were clusters of up to 5 desks, with two people at each desk[52]We conclude this PCP was applied. There was the same desk arrangement when in response and in DIT.[53]We conclude the PCP put the claimant at a substantial disadvantage, compared to people without her disability in that she had difficulty concentrating. The OH report had recommended provision of a quiet space to use when doing paperwork. This was more of an issue for the claimant during the period in DIT than in response. In response, most officers were out most of the day whereas in DIT most officers were office based most of the time.[54]We conclude the respondent knew or ought reasonably to have known the claimant was likely to be placed at the disadvantage due to the contents of the OH report. The claimant wearing headphones at times was also a visible sign that she had more difficulty working in a noisy environment than officers without her disability.[55]We conclude that the duty to make reasonable adjustments arose.[56]The adjustment which the claimant says should have been made was to provide her with a quiet space where she could work.[57]We conclude that the respondent did not provide this. The claimant was free to work where she could find a suitable space but the respondent left it to the claimant to find spaces and quiet spaces were not always available. We conclude it would have been a reasonable adjustment to identify and make available a quiet space whenever the claimant needed it.[58]We conclude that, subject to time limit issues, we would have concluded that PCP3 – A practice of leaving individuals to decide on how to prioritise work and what order to do work in and of identifying how to complete work.[59]We had little evidence on this. We are not satisfied officers were not given any assistance in how to prioritise work. Sgt Beirne put times on the computer by which work was to be done. Officers received training during the tutor period in how to complete work. The claimant has not satisfied us this PCP was applied.[60]If we have jurisdiction to consider this complaint, the complaint would fail on its merits. PCP4 – A practice of not providing the workforce with one-to-one catch up meetings at which discussions of progress and of support could take place.[61]We take this PCP to refer to planned one to one meetings with a line manager, where progress could be discussed and support needs could be discussed in private, rather than referring to ad hoc short discussions with the sergeant, in the open office. We conclude that there was a practice of not providing such meetings.[62]There were no planned one to one meetings until after the 22 February 2023 meeting and, even then, the meetings with Sgt Beirne were short catch ups in the open area, rather than support meetings where the claimant could discuss matters including adjustments needed for her disability.[63]We conclude that this practice put her the claimant at a disadvantage as she was caused stress and anxiety, further impacting her work performance, by not being able to discuss stressors and further support that could be provided.[64]We conclude that the respondent knew or ought reasonably to have known that the claimant would be placed at this disadvantage. The OH report recommended regular 1-1 supportive catch ups with the line manager to review ongoing support and provide opportunity to discuss any anxieties/stressors. It should have been clear from the report that this was suggested as an adjustment because of the issues relating to ADHD and it is implicit that lack of such an opportunity would be likely to increase stress and anxiety with a likely adverse impact on work performance.[65]We conclude that the duty to make reasonable adjustments arose.[66]The adjustment which the claimant says should have been made was to give the claimant regular 1-2-1 supportive catch up meetings with line managers to review ongoing support and allow discussion of anxieties and stressors. This is one of the adjustments recommended by the OH report. We conclude that this would have been a reasonable adjustment to make.[67]We conclude that, subject to time limit issues, we would have concluded that Time limit issues in relation to the discrimination complaints[68]We have concluded that, subject to time limit issues, the following complaints would succeed: 68.1. the harassment complaints about conduct of Sgt Beirne in relation to the claimant’s ADHD meetings (6.1.1 in relation to the 14 and 27 March 2023 meetings but not that of 17 February 2023); 68.2. The s.15 complaint at 7.2.1 – the complaint about what Sgt Beirne said about the claimant being required to stay behind in March 2023 as a punishment because she had taken so long on tasks. 68.3. The complaints of failure to make reasonable adjustments in relation to PCPS 1, 2 and 4: PCP1 - A practice after having been on a job, being required to complete all necessary paperwork as soon as possible, with an officer not being allowed to finish a shift before all paperwork was completed. PCP2 - A practice of working in an office where there were clusters of up to 5 desks, with two people at each desk PCP4 – A practice of not providing the workforce with one-to-one catch up meetings at which discussions of progress and of support could take place[69]The harassment complaints relate to matters on 17 February and 14 and 27 March 2023. The s.15 complaint relates to an incident on 21 March 2023.[70]The complaints of failures to make reasonable adjustments relate to events ending when the claimant was suspended from her normal work and put on restricted duties, on 30 March 2023. The claimant did not make complaints about her time at Sedgley park when on these other duties or about her treatment when she returned to work on a different relief, in June 2023.[71]We conclude that the latest date by which adjustments should reasonably have been made was 30 March 2023.[72]We conclude that acts of harassment and s.15 discrimination formed part of a continuing course of conduct with the failures to make reasonable adjustments since all the acts of discrimination involved the claimant’s line managers, the harassment and s.15 complaints relating to Sgt Beirne only. Since we have concluded that the latest date by which adjustments should reasonably have been made was 30 March 2023, the time limit started to run from that date. Time spent in early conciliation did not extend the time limit because early conciliation was not started within the primary time limit. The time for presenting the complaints of discrimination, therefore, expired on 29 June 2023 – 3 months beginning with the last date of discrimination.[73]The claimant presented the claim on 29 January 2024, 7 months out of time. The Tribunal will only have jurisdiction to consider the complaints if it considers it just and equitable to do so in all the circumstances.[74]We considered the following factors that might provide reasons for considering it just and equitable to extend time: 74.1. That the claimant remained a serving police officer until her resignation, tendered on 11 November 2023, taking effect on 8 December 2023. 74.2. The claimant wanted to try to sort things out internally and carry on as a police officer. 74.3. The claimant made a Fairness at Work complaint on 28 August 2023 and did not resign until more than 2 months later, since the respondent had still not, by then, organized a meeting with her. 74.4. The claimant was off sick from 8 August 2023 until the end of her service. 74.5. Police officers do not have all the same employment rights and rights to bring claims in employment tribunals as employees. 74.6. The claimant had been told, in relation to the handling of a complaint about her daughter being bitten by a dog, by people of senior rank, that she could not, as a serving officer, make a claim against the police. 74.7. The claimant was suspended from normal duties and under investigation for gross misconduct from end March 2023 until mid June 2023, when she was told there was no case to answer. 74.8. Time limits relating to complaints of failure to make reasonable adjustments are difficult even for legal professionals to understand.[75]We considered the following factors that might provide reasons why it would not be just and equitable to extend time: 75.1. The claimant had access throughout to advice through the Police Federation. 75.2. The claimant could have easily found out earlier about her rights to bring complaints of whistleblowing and disability discrimination in the employment tribunal as she did in November 2023 by an internet search, following a meeting with Chief Inspector Barton. 75.3. When off sick, the claimant was able to draft her Fairness at Work complaint so would have been capable of drafting a claim form for an employment tribunal. 75.4. The claimant did not make her Fairness at Work complaint within the primary time limit for her complaints of disability discrimination. 75.5. The claim was presented very substantially outside the primary time limit, around 7 months late. 75.6. Once the claimant became aware of her rights in November 2023, the claimant could have asked for the early conciliation certificate to be issued immediately after notification to access and presented her claim sooner. She went to early conciliation on 22 November 2023 but did not present her claim until 29 January 2024, more than two months later.[76]Weighing up all these factors, we conclude that it would not be just and equitable to extend time. The delay in presenting the claim is so substantial that it outweighs the factor which might have provided reasons to extend time. We do not consider it would be just and equitable to extend time. We conclude, therefore, that we do not have jurisdiction to consider the complaints of disability discrimination. For the reasons we have given, a number of the complaints would have succeeded on their merits if we had had jurisdiction. Approved by: