Mr J McCaffery v British Transport Police: 2405569/2022
EMPLOYMENT TRIBUNALS
Case No 2405569/2022
Between
Mr J McCafferyClaimantBritish Transport PoliceRespondent
Before
Employment Judge GrundyMr D Tinkler (instructed by Counsel) for claimantMr N Caiden (instructed by Counsel) for respondentDate 8 November 2023
JUDGMENT
[1]The claimant was a disabled person within the meaning of s6 of the Equality Act 2010 at the relevant time.[2]The case management order of 22.2.23 shall be varied to provide amended filing dates as follows- exchange of all witness statements by 4pm on 11 August 2023 and the indication to the Tribunal the case is ready to proceed or not with reasons if not by 4pm on 14 August 2023.
REASONS
[1]The Tribunal gave reasons to the parties orally on the day of the hearing, reserving the right to set out those more specifically in writing as the final hearing is listed to commence on 21 August 2023, but not to alter the substance.[2]The claimant brings claims for disability discrimination arising from a disability and in respect of reasonable adjustments. Those claims are listed for hearing shortly in August 2023. The case management orders have been made by Employment Judge Leith on the 23rd of February 2023. At all relevant times the claimant was employed by the respondent as a trainee British Transport Police officer.[3]The issue for the Tribunal today is whether the claimant can satisfy the definition of disability as set out in s6 of Equality Act 2010. As follows“Disability (1)A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-today activities.[4]The burden of proof is on the claimant. The dispute was not the question of long term mental impairment, the claimant being diagnosed with dyslexia and dyscalculia, the former since aged 7 and such conditions being conceded by the respondent, but whether the Tribunal has before it sufficient evidence to conclude such impairments have “a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.” 2 The Tribunal heard from the claimant on oath and heard the submissions of counsel on behalf of the claimant and the respondent. The tribunal had an extensive bundle of documents containing a number of reports detailing the claimant’s history regarding these conditions as set out in the index to the bundle- most particularly Dr Rack (psychologist) from 1999, Dr Schneider ( Ed Psychologist) from 2008 and Dr Cheesman ( Occupational Health Psychologist) from October 2022. There were further OH reports from the respondent also as set out in the index. 3 Further documents were sent to the tribunal which included :- The CMO of EJ Leith on 22.2.23, ( although in the bundle already) and a second statement from the claimant – 19 July 2023; a report from the claimants trainer,- BT police officer PC Mottershead ( “Document 68”). And each party provided submissions in writing. A further authority Paterson v Commr of Police of the Metropolis 2007 IRLR 763 was sent to the tribunal after submissions (at the Tribunal’s request) and was referred to during the hearing. 4 The claimant’s submissions were as set out in the note to the Tribunal, in brief the following are relied upon- as quoted from the Note referring to the statement, “C identifies the following difficulties which arose from his condition:.1 spatial difficulties which impacted on a range of nonverbal problem-solving tasks (para 6 and para 10).2 spatial and sequencing difficulties in spelling and written work (para 6).3 problems breaking down things into segments (para 7).4 lower processing speed when required to reduce matters into writing (para 10). “ The claimant relied on the assessment of PC Mottershead’s description of C’s performances (and failings) reflect the difficulties presented by C’s disability as set out in an email dated March 22 after the training on the job element was being undertaken: PC Mottershead notes that C ‘really struggled’ to learn how to use the niche computer system and this needed to be explained to him ‘multiple times.’ This accords with C’s evidence that he has difficulty inputting information onto the computer and needed instructions broken down or written down; PC Mottershead states that C ‘does not have the competence to effectively interview and deal with [a] case file himself.’ C identifies interviews as presenting a particular difficulty because of his disability; PC Mottershead notes that C had difficulty remembering new processes and procedures and needed repeat instructions for the same task. This reflects C’s need for material to be broken down into chunks and the need for his training to be supported with checklist and templates.”[5]The tribunal’s assessment of the claimant’s evidence after the claimant confirmed the contents of his statements dated 13.4.23 and 19.7.23 was that from this short snapshot the Tribunal found his evidence to be straightforward, intelligent and thoughtful.[6]He indicated that in examinations taken whilst in training which could last either 30 or 40 minutes: he was given an additional 10 or 15 minutes to answer the questions. He indicated he had problems with the niche system. This is the police system for recording occurrences and actions essential to police recording. He indicated difficulty in on occasion, making notes and writing things down. Especially as there had been gaps between learning policies and procedures and putting them into effect. He also required additional tutoring with regards to personal safety matters.[7]He accepted PC Mottershead identified that he needed further training support. And he had gaps in his encoding memory. At certain times he also indicated difficulties with short term memory and difficulties memorising and following sequencing-ie. He had difficulty in recalling things in the right sequence. In document 68 authored by PC Mottershead it records that. “Every officer in BTP has had to get to grips with niche at some point, but with a little time and playing about people generally get used to the interface. His assessment of the claimant was that he had really struggled.” (The first sentence was unfortunately redacted at the time the hearing began but is of importance and a unredacted copy has been before the tribunal.)[8]In oral submissions, Mr Tinkler developed the point, relying on Paterson above 2007 IRLR 763 regarding the claimant requiring 25% plus extra time in doing tests-. relying on the judgement of Elias J. in relation to the assessments, this was a fact to be taken into consideration.[9]The EAT holding in that case (where a police officer was concerned re non promotion he said due to disability discrimination) is instructiveThe EAT held:The employment tribunal had erred in holding that although Mr Paterson suffered from dyslexia he was not a disabled person within the meaning s.1 of the Disability Discrimination Act 1995. Carrying out an assessment or examination is properly to be described as a normal day-to-day activity. Moreover, reading and comprehension are themselves normal day-to-day activities. The decision of the ECJ in Chacόn Navas was decisive of the point. “Day-to-day activities” has a meaning which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable an employee to advance his employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life. The only proper approach to establishing whether the disadvantage was substantial is to compare the effect of the disability on the individual; this involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial. In the present case, once the tribunal accepted that Mr Paterson was disadvantaged to the extent of requiring 25% extra time to do the assessment, which was what the first report considered appropriate, then it inevitably followed that there was a substantial adverse effect on normal day-to-day activities. Mr Paterson was, therefore, a disabled person within the meaning of s.1 of the 1995 Act.[10]Further, Counsel drew the tribunal's attention to the Educational Psychologist report of Doctor Schneider in 2008 and Doctor Cheesman in October 2022, asserting that the picture was consistent. Although the claimant’s presentation is not “classic” in respect of dyslexia. There are certain weaknesses, for example in his short term memory.[11]Doctor Cheesman reported in October 2022 and explored with the claimant. what he experienced at the time of his employment. And Mr Tinkler drew the tribunal's attention to his borderline functioning in some areas, particularly at page 133, paragraph 5.3.4. At page 134 paragraph 5.3.6. - his processing speed. And tasks taking longer at page 135. And at page 143. Paragraph 6.3.1 the working memory aspect.[12]He drew attention to the status of the day-to-day activities that the claimant would then be carrying out at work, such as conducting interviews with suspects, preparing MG11 statements, uploading information onto the computer system. And how to manage the IT system all of which it is submitted would require structured support to enable learning to take place.[13]Mr Tinkler invited the tribunal to consider the matter through the lens of the adjustments the claimant would need to carry out the claimant's day-to-day activities. He drew attention to the claimant’s evidence regarding the necessity for chunks of material to be given to him, templates to be provided and checklists. He submitted that timetables would be necessary to assist the claimant.[14]He distinguished the application of Jackson v Lidl. as referred to in the respondent’s submissions as in that case, there was no evidence of a disability.[15]He drew attention to the Guidance making the point regarding it being illustrative and non exhaustive. Further relying on the fact that here there are a number of different impacts for the claimant of his disability not only one aspect.[16]Mr Tinkler submits that the claimant suffers from complex and profound difficulties. And although he can read difficult matters which may include complex texts, that is not to say he does not have a substantial effect from the disability in other ways. Re- Issue of SERVICE OF 2ND Statement of the claimant[17]The respondent did not oppose the introduction of the second statement of the claimant although it was submitted without permission. The claimant says it was sent by email on 19.7.23 at 15.46. The respondent says it is an attempt to correct deficiencies from first statement but overall takes a pragmatic approach and reserves the right to raise any issue regarding the statement on costs if the case proceeds.[18]The respondent’s submissions by Mr Caiden were as in writing as set out in his note to include that the claimant had not ticked box at page 10, ie not say disabled; deficits in the claimants witness statements; and the “ medical evidence” and his impact statements did not establish ‘ substantial adverse effect.”[19]Mr Caiden, on behalf of the respondent developed this in oral submissions and submitted that the date to be considered here is plainly when alleged discriminatory conduct occurred, ie during the course of the claimant’s employment not at the time that Dr Cheesman had examined the claimant.[20]He asserts that the claimant’s conditions do not have a substantial adverse effect on his day-to-day activities. Although he accepts that the reports have been undertaken at various times and that on a reading of some aspects of the tests, the claimant is in lower percentiles on some aspects of functioning but that in itself does not necessarily lead to a conclusion of substantial adverse effect. He submits that functional diagnosis do not assist the tribunal.[21]He invites the tribunal to consider evidence which goes the other way. And that the best evidence is what happened at the time.[22]He criticised the claimant’s approach in considering what adjustments the claimant would require and working backwards.[23]He did not accept the reason the claimant had difficulties with “niche” was due to his dyslexia and that a causal link had been established. He asserted that for example- If the claimant relied on a failure of sequencing memory in in the abstract, he had failed to give concrete examples of it, such as not being able to remember his phone number. He asserted that it did not follow that the claimant had a particular diagnosis and was therefore disabled. He asserted that the claimant had not given sufficient concrete examples of actions to allow the tribunal to conclude that there was substantial adverse effect. He says the claimant’s evidence lacks the necessary detail and examples.[24]He asserted that because of the diagnosis, the claimant would in any event be given further time in exams as a matter of course by the respondent. He drew the tribunal's attention to the report of PC Paul Franklin. detailing the training modules. that the claimant had completed showing he asserted a sound understanding of the law requiring some aspects of memory. Further that the claimant had been able to do certain things putting in doubt the claimant's assertion that there was a substantial effect. The law to be applied[25]The tribunal has considered the definition of disability within section 6 of the Equality Act. The tribunal has had regard to the authorities referred to by the parties within their skeletons. The landmark case of Goodwin v the Patent Office 1999 IRLR 4 EATElliott v Dorset County Council 2021 IRLR 880 EAT, And Paterson as above[26]Further the respondent relied on landmark authority establishing the claimant bears the burden of proof Kapadia (2000) and MutomboMpania (2018). Further that the time for assessing the disability is the date of the alleged discriminatory act – Cruickshank v VAW Motorcast Ltd 2002 ICR 729 EAT and Richmond Adult Community College v McDougall 2008 ICR 431 Jackson v Lidl GB Ltd 2302259/19 expressing difficulty in, “at what point the condition of dyslexia which is shared by many people crosses the line to be classed as a disability”.[27]The tribunal considered the Guidance to the definition of disability provided within the Equality Act 2010 and in particular with regard to the meaning of“substantial adverse effect.” At B1, the requirement that an adverse effect on normal day-to-day activities should be a substantial one, reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at section 212( 1).[28]One of the features which is included in the guidance is the time taken to carry out an activity. At B2, the time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.[29]At B3, the way in which an activity is carried out,- another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment.[30]The guidance goes on to consider the cumulative effects of an impairment. Before an impairment might not have a substantial adverse effect on a person's ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect.[31]Day-to-day activities in the guidance is considered at D. Within D3 it indicates that “normal day-to-day activities” can include general work- related activities and study and education related activities such as interacting with colleagues, following instructions, using a computer, driving. Carrying out interviews, preparing written documents and keeping to a timetable or shift pattern.[32]This tribunal accepts that the guidance is guidance and is non exhaustive in its examples.The tribunal has had an opportunity to review the totality of the evidence and the reports and submissions made and re read the bundle and skeletons.
CONCLUSION
[33]The tribunal has reached the conclusion that the claimant has satisfied the burden of proving that his dyslexia (and dyscalculia) have a substantial adverse effect on his ability to carry out normal day to day activities.[34]The tribunal has taken a holistic approach to considering this question. There are several medical reports as listed in the index historically and from the respondent’s OH evidence, the “medical “/ “ psychological” evidence from Dr Schneider albeit from 2008 and Dr Cheesman from October 2022 albeit instructed for these proceedings and but which bear out an effect which is beyond minor.[35]The reasons why the tribunal concludes the claimant has demonstrated that test are essentially these:-(1) The medical evidence read overall is quite compelling. The claimant has those difficulties explained in the skeleton of Mr Tinkler particularly processing, segmenting and sequencing. There is no quantum leap to those being caused by mental impairment and illustrated by the difficulties faced as evidenced in PC Motterhead’s email of March 2022(2) The Email of PC Mottershead (DOC 68) is very telling –It is critical of the claimant’s competence on NICHE which did not improve as time went on, on uploading a MG11 – witness statement -a crucial police task – “ that he was unable to retain the knowledge” that he required “constant supervision when completing paperwork”, that there was poor interview criticism and also criticism of the process of a “GO WISELY STOP AND SEARCH”.(3) These professional activities can be regarded as normal day to day activities in the role per the authority of Paterson and the Guidance.(4) To a point, the assessment is at loggerheads with the assessment of the trainers in November 2021 – “James demonstrated competencies across core skill areas, applying the law and communicating effectively and making timely decisions. He showed a willingness to learn and took on board constructive feedback. He impressed his tutor with his abilities and it was stated that he now needs the experience and opportunities to develop further what he has learnt.”(5) The tribunal’s assessment is that that evidence is regarding the claimant not in the actual role, but in a training setting and the on- the- job competence was the real issue where the “experience and opportunities” actually showed how the claimant was compromised by being affected by his disability in a substantial way. This has been weighed in the balance.(6) The tribunal accepts the submission at paragraph 15 of the claimant’s note re the claimant’s performance as a student constable reflects a substantial adverse effect—niche/ interviewing /new process /recall –These are major and cannot possibly be said to amount to minor matters.(7) The tribunal does accept Mr Caiden’s argument that the claimant has to a degree put the cart before the horse and is not persuaded that it needs to look through lens of reasonable adjustments, but what the tribunal can legitimately do is look at how a person not labouring with the disability copes and they for example- would not need extra time, not need further training, nor repetition to complete tasks nor constant supervision.– all of which are of some significance when one looks at the matter as a whole.(8) The tribunal is not persuaded as per page 10 of the box which is not ticked to say the claimant does not rely on being disabled-it may be a processing mistake but it is not conclusive or helpful.(9) This is not a simple case as the claimant’s presentation may not be classic dyslexia, it requires to delve down into the subtleties, it is not one thing on its own but a cumulation of effects so for example- more time for assessments or exams -- NICHE not equipped/ grasped after “ playing around”, the claimant missed out a key part of script for arrest. In conclusion there is not one part of what is at play – there are several strands tying together to make the substantial adverse effect. This is an important consideration and the tribunal accepts there is not “ONLY” one aspect here.(10) Overall the tribunal concludes that substantial adverse effect on day- today activities is made out by the claimant.
FINDINGS OF FACT
[36]The claimant completed a Student Registration Form on 14 June 2021 (pp623- 627). At question 10 the question is posed ‘Do you have any special educational needs?’. The claimant answers with ‘I am dyslexic and also have dyscalculia and sometimes require time with reading, writing, or tasks involving arithmetic. However, I have strong verbal reasoning skills built due to academic and professional experience.’[37]The claimant has various progress checks throughout his study period.[38]It is in the third of the progress check meetings, on 08 July 2021 (p.245), that the claimant raises his condition of dyslexia (but not dyscalculia) following him failing Knowledge Check 2. As part of that discussion with the Mr Franklin, the following occurred:a. The claimant expressed he had dyslexiab. He explained that additional time and being able to write on question papers would assist him with respect his dyslexiac. Mr Franklin agreed to those adjustments.d. The claimant agreed to send to Mr Franklin a report from a Dr Schneider, an Educational Psychologist, that was produced in 2008 for the purposes of his study at Edinburgh University.[39]The claimant’s witness statement, and the way his case was presented, places the report being received in advance of the adjustments being made. However, the tribunal does not accept that to be accurate given the contemporaneous evidence that we have before us.[40]On or around 12 July 2021 (the following Monday), the claimant presents the Dr Schneider report to Mr Franklin. The Schneider report is at pp.97-106. This included the following:a. At p.98, in the assessment summary, it is recorded that the claimant has weaknesses in short term memory and processing speed and also a difficulty in problem solving with visual spatial tasks. And that these areas will impact on the claimant’s speed and accuracy in particular contexts.b. At p.99, applying the Wechsler Adult Intelligence Scale III, the claimant was scored at least of average, with exception to picture completion, digit symbol, arithmetic, digit span and symbol span.c. At p.101, the claimant’s working memory was in a very low range, however this related to numbers.d. It is identified that the claimant had great difficulty with visual spatial problems.e. The claimant has a working memory that is weak, and has difficulty moving information into his long-term memory.f. At p.102, it is expressed that it can often be difficult to identify dyslexia conclusively in adults.g. At p.103, that the claimant is likely to have impacted his ability to prioritise and organise ideas to paper.[41]The respondents adopt a policy whereby documents disclosed by an employee, especially those matters that include personal sensitive information, such as medical conditions, are not shared beyond the intended recipient and/or placed on a HR file without express consent from the employees (the tribunal accepts the evidence of Ms Redmond on this point, which was unchallenged by the claimant).[42]The claimant did not give consent for this report to be shared beyond Mr Franklin and Mr Mackay. We make this finding for the following reasons. The claimant did not give evidence in his main statement for this hearing that he had provided consent. Although there is reference in para 21 of the claimant’s Witness Impact Statement for the purposes of establishing disability (p.466), reference to consent was equivocal at best. On that basis we do not accept that the claimant gave such permission.[43]Neither Mr Franklin or Mr Mackay sought permission from the claimant to share the Dr Schneider’s report. The tribunal had no evidence on this, however, did consider the progress meeting notes, at which there was no record of such consent being sought.[44]The claimant met with Mr Franklin on 22 July 2021, and it’s recorded that the claimant’s scores had improved after the agreed adjustments had been implemented (p.246).[45]Around 08 August 2021, the claimant met with PC Margaret Ballentyne on three occasions. PC Ballentyne was due to be the claimant’s tutor during his tutor phase at Carlisle. During these meetings, the claimant informed PC Ballentyne that he had dyslexia and dyscalculia. However, we reject the claimant’s evidence that he then explained to PC Ballentyne that he had been struggling with the visual spacing tasks of PST training such as handcuffing. We do not accept that this is accurate given the approach taken by the claimant throughout his time with the respondent in respect of his impairments. On the other occasions that the claimant raises his dyslexia and/or dyscalculia with the respondent he provides little detail as to the affects it was having on him and his ability to complete work tasks. There is no record of any similar discussion or the raising of any struggles in any of his student progress meetings. This is despite him now saying that he explained to Ms Ballentyne that he was struggling with visual spacing tasks during PST training. And specifically no such thing is raised on 08 July 2021 when the claimant had raised his dyslexia and a need for extra time and to be allowed to write on exam papers. There is nothing raised of any similar struggles with Occupational Health on 10 June 2020 when dyslexia and dyscalculia was discussed. There is no raising of such struggles when the claimant raised his dyslexia with Mr Mottershead around 29 November 2021. There is no raising of such struggles in any of the progress meetings with Mr Mottershead and/or Mr Ashbridge. And there is no raising of such struggles with Mr Ashbridge in the meetings of 18 and 22 February 2022, when the claimant was raising with Mr Ashbridge that he had a diagnosis of dyslexia. And this is consistent with the claimant’s oral evidence in this case, where he said on several occasions that he did not raise any issues around his dyslexia as he did not know how it would affect him in his role. Given all of this, the tribunal finds that on balance he more likely than not explained to PC Ballentyne that he had a diagnosis of dyslexia and dyscalculia but did not go onto explain any specific struggles that this was causing him during the training period. And this is given that that was his evident approach to his impairments in the documents throughout his training period with the respondent.[46]A Student Officer Report for the claimant was completed on 02 November 2021 (pp.247-248). This records the claimant’s scores in the various Knowledge Checks. Overall, aside from Knowledge Check 2, the claimant scored relatively highly. There is no reference to dyslexia, dyscalculia, or associated difficulties, within this document.[47]As part of the Student Officer Report, assessment was made of the claimant’s completion of ‘Personal Safety Training’. It was recorded that the claimant had completed ‘all PST training successfully and to a good standard’.[48]Initially the claimant was selected to commence his training at Leeds (p.321). However, this was later changed to Carlisle (p.322).[49]At some point before the claimant’s tutoring period commenced, the tutoring responsibility transferred from PC Ballentyne to Mr Mottershead. At no point during this transfer of responsibility did PC Ballentyne inform Mr Mottershead of the conversation she had had previously with the claimant around the claimant’s dyslexia and dyscalculia. The tribunal accepted Mr Mottersheads evidence on this, and the claimant accepted that he did not know and had no way of knowing whether Mr Mottershead had had such a conversation.[50]In advance of acting as tutor for the claimant, Mr Mottershead received the claimant’s training report (pp.247 and 248). However, he was not sent the notes form progress check meetings (pp.245-246). The tribunal accepted the evidence of Mr Mottershead on this matter, which was consistent with the evidence of others, including Ms Redmond who gave unchallenged evidence that as these were general course notes they would not be issued to those at Carlisle.[51]Around 4 weeks into the tutor phase at Carlisle (around 29 November 2021), the claimant met with Mr Mottershead. Mr Mottershead at this point did not know that the claimant had either dyslexia or dyscalculia. At this meeting, the claimant informed Mr Mottershead that he had dyslexia. This was whilst the claimant was working on the Niche system, after the claimant had asked a question concerning where to find a statement, and Mr Mottershead had responded to explain that he had shown him on numerous occasions. There is an inconsistency in the evidence that the claimant put in his witness statement for today (at para 50), where the claimant says that Mr Mottershead told him that he was aware the claimant was dyslexic, and that that he gave in his disability impact statement (para 28 on p.469), where the claimant explained that he made Mr Mottershead aware of his disabilities at this meeting. Given the disability impact statement was made closer to the time, and given that that is consistent with Mr Mottershead’s evidence, we conclude that on balance Mr Mottershead likely did not know that the claimant had dyslexia at this point and it was the claimant who informed him at this point.[52]Mr Mottershead on receiving this information, asked the claimant whether any support or adaptions would be needed. This included asking whether yellow paper and/or cue cards would help him. Mr Mottershead also offered to assist the claimant in producing cue cards should those have been considered a needed adjustment. Mr Mottershead invited the claimant to let him know if there was any support or adjustments that would help him. The claimant accepted that this conversation as recorded at para 8 of Mr Mottershead’s witness statement took place.[53]The claimant did not inform Mr Mottershead of the need for any adjustment or adaptation, or how his disabilities were affecting him at work either at this meeting or at any point afterwards. The claimant’s oral evidence was that Mr Mottershead only offered what he considered to be basic adjustments for dyslexia and that he considered that Mr Mottershead would not have understood the specifics of his disability if he explained it to him. And as he considered that Mr Mottershead would not understand his disability then he did not engage in that discussion. In short, the claimant did not explain to Mr Mottershead any affects that he says dyslexia or dyscalculia were having on him, nor did he explain how they were affecting him in either the workplace or outside of the workplace.[54]On 05 December 2021, the claimant emailed Mr Ashbridge (see p.345). In this email, the claimant explains that he feels supported by Mr Mottershead and the team to get through the units for IPS. There is no reference to any difficulties with the role or any impacts on his ability to do the role because of dyslexia or dyscalculia.[55]The claimant met with Mr Ashbridge and Mr Mottershead on 06 December 2021 (notes of meeting are at pp.181 and 182). The claimant was deemed to be making good progress towards Independent Patrol Status (‘IPS’). However, there were still units that required further work before they could be signed off. These were recorded as being due to a lack of opportunity, rather than performance.[56]At this meeting there was a general discussion around support that the claimant needed. The claimant was afforded the opportunity to raise any concerns he had with his training and progress. The claimant raised an issue of lack of training on Niche at Springhouse (this is not in dispute between the parties and recorded at para 15 of Mr Mottershead’s witness statement). The claimant did not raise in this meeting any concerns about how his impairments were impacting on him, or how they were affecting his progress and/or performance (the claimant accepted the accuracy of the notes under cross examination).[57]It was agreed between those at the meeting of 06 December 2021 that the tutoring (referred to as in-company) period would be extended until 22 January 2022. It was recorded that any review would need to take place before 22 January 2022. This extension was to allow more time to enable further opportunity for the claimant to be involved in incidents that would satisfy the incomplete units needed for IPS. It was agreed that 4 x 45-minute training sessions would be arranged for the claimant with the Digital Policing Team in respect of the NICHE system.[58]On 19 January 2022, the claimant met with Mr Ashbridge and Mr Mottershead (pp.183-187). In this meeting there was discussion about the claimant’s performance in respect of an interview carried out on 04 January 2022. The claimant accepted in his oral evidence that Mr Mottershead at this meeting provided him with feedback on the incident, and therefore we find he was given such feedback. The claimant was given constructive feedback. The only other issues raised at this meeting concerned those situations where there was a lack of opportunity to complete a unit. Mr Ashbridge explained that there was still work to do in respect of interviewing of suspects. The claimant was given the opportunity to explain why the interview was not successful, and he explained that this was because he did not have enough time to prepare for the interview (see p.184). And the meeting ended with all in the meeting having agreed that the outstanding PAC elements were achievable. At no point did the claimant raise anything in respect of how his dyslexia and dyscalculia were affecting him, or anything that would suggest that he was being put at a substantial disadvantage because of his impairments.[59]The claimant was placed on an action plan with respect interviewing of suspects. The tutor stage was extended until 25 February 2022. The action plan provided was set out with what improvements were necessary. It stated specifically what the action plan was intended to achieve. It was measurable, and it explained to the claimant how his performance would be measured. The objective was identified as being achievable. The relevance of the task was explained. And the claimant was provided with a timescale of the plan running until it was achieved (the action plan is at p.186). This is a SMART action plan.[60]The claimant met with Mr Ashbridge on both 18 and 22 February 2022 (the notes of which are at pp188-193). The claimant was held to have successfully completed the action plan, and it was observed that there had been a huge improvement in this respect. Issues were raised in respect of Deadlines, PNB Reviews, Intelligence Reports, Preston deployments, NICHE Training, Property, Stop and Search and the assault on the claimant. The claimant during discussions of these issues did not raise that he was being impacted upon by his disabilities, nor that his disability was putting him at a substantial disadvantage that was affecting his performance.[61]Following discussion of the issues above, Mr Ashbridge asked the claimant whether he has all the support he needed in the workplace. The claimant responded by informing Mr Ashbridge that he had been diagnosed with dyslexia, and that this mainly affected his spatial awareness, such as hand/eye coordination. The claimant informed Mr Ashbridge that his dyslexia had not been internally diagnosed so he was unsure what the respondent could do for him. At no point did the claimant make any reference to his disabilities affecting the speed and manner of his learning. Nor did he give any indication of any adjustments that would assist him. This was the first time Mr Ashbridge had been made aware of the claimant’s impairments.[62]The claimant and Mr Ashbridge agreed that an Occupational Health referral would be made. This was to help the respondent understand the effects of the impairments on the claimant and what support and/or adjustments could be made to help him in his role.[63]Om 22 February 2022, the claimant sent Mr Ashbridge a letter of resignation. The claimant explains in that document that he was resigning as he had concerns about the fairness of the current process but placed the reason for his resignation as being work-related stress. At no point in this document did the claimant raises any matter concerning any treatment of him due to dyslexia or dyscalculia, not the management of the impacts that such were having on his ability to undertake his work.[64]The claimant sought to rescind his letter of resignation. This was a telephone conversation with Mr Ashbridge (this is recorded in an email form Mr James Mitchell at p.455). The decision on this ultimately sat with Mr Rams. No conversation took pace between Mr Rams and the claimant. The only knowledge Mr Rams had of the claimant’s impairment is that as recorded in the meetings of 18 and 22 Febraury 2022, which he reviewed as part of his decision making. Conclusions on knowledge and substantial disadvantage[65]It is trite law that knowledge of an impairment does not equate to knowledge of a disability (at least where the impairment concerned is not a deemed disability, of which dyslexia and dyscalculia is not). In essence what the tribunal is tasked with is determining whether the respondent had actual or constructive knowledge that the claimant had an impairment that was having a long-term substantial adverse affect on his normal day to day activities (as per Gallop).[66]The claimant had ample opportunity to raise issues around him having dyslexia and dyscalculia and/or the effects they were having on him and/or the disadvantages that was putting him at in the workplace. This included the following opportunities:a. On his application form. Where he named the specific impairments but not did not provide an indication of any effects that had on him nor any adjustments that could be made to assist him.b. At the PCSO medical assessment on 10 June 2020. Where the claimant’s impairments were discussed, but the claimant informed the assessor that he did not require any adjustments.c. At the Occupational Health referral on 23 April 2021, where the claimant did not raise anything relating to his impairments.d. On the student registration form, where the claimant explained that he ‘sometimes requires time with reading, writing, or tasks involving arithmetic’, but with no further detail.e. At a student progress meeting on 08 July 2021, where the claimant explained that he would benefit form extra time in assessments and if he was allowed to write on the question papers.f. The meeting around 08 August 2021 with PC Ballentyne, where the claimant does raise his impairments. However, the claimant did not explain anything further.g. That when informing Mr Mottershead of the impairments in a meeting in November 2021, when Mr Mottershead asked directly about what the respondent could do to help him, the claimant decided to not engage in the conversation and provided no detail of how his impairments were affecting him nor any adjustments that would assist him.h. On 05 December 2021, when emailing on matters to Mr Ashbridge, which included on the support he was receiving, he again chooses not to raise anything concerning the affects of his impairment and the need for additional support, but instead explained that he ‘felt supported’.i. At a meeting with Mr Ashbridge and Mr Mottershead on 06 December 2021, when discussing additional support that the claimant needed, he did not raise anything about his impairments, only raising concerns about NICHE training not having been provided.j. At a meeting on 19 January 2022, the claimant met with Mr Ashbridge and Mr Mottershead, and when the claimant’s performance in respect of an interview was discussed, the claimant at no point raised anything in respect of his impairments.k. In the meetings of 18 and 22 February 2022, when the issue of dyslexia was discussed with Mr Ashbridge, the claimant again only provided very bare details, explaining simply that his symptoms “mainly surrounds spatial awareness i.e. hand/eye coordination”. Mr Ashbridge committed to making an Occupational Health referral to try to understand what support could be provided. However, the claimant resigned before this process was completed.[67]At its height, the claimant is relying on a note from the student progress meeting on 08 July 2021, and the Dr Schneider report that was presented to Mr Franklin on or around 12 July 2021.[68]With respect the student progress meeting, this does not provide sufficient information from which the respondent could be said to have actual or constructive knowledge.[69]And, when one considers the Dr Schneider report carefully, this does not either. The report was created following an assessment on 31 October 2008. And was created for the purposes of education. As per our findings of fact above, the report primarily concluded that the claimant was within the average range in terms of WAIS-III tests, save for picture completion, digit symbol, arithmetic, digit span and symbol spa (which appear for the most related to numbers). And this is not withstanding that the claimant had not given permission of this report to be shared, as found above.[70]This tribunal concludes that the above, and the information available to the respondent, did not give it actual or constructive knowledge of the claimant’s disabilities, nor did it give actual or constructive knowledge of the substantial disadvantages on which the claimant brings his reasonable adjustment complaints.[71]Although the claimant informed the respondent of his impairments (which alone is not enough), he presented himself as not having his normal day to day activities affected by it and that it was not placing him at any disadvantage. Rather, he gave the impression that it was not affecting his normal day to day activities or placing him at a disadvantage and that no support or adjustments were required. Discrimination arising from disability allegations Additional findings relevant to first unfavourable treatment allegation: on 19 January 2022, issuing the Claimant with an action plan in respect of his work[72]After failing to pass Knowledge Check 2, the claimant was placed on a Development Plan (see p.245). The action plan itself is at p.161. This is a SMART development plan. The Development Plan was successfully implemented, and the claimant passed Knowledge Check 2.[73]At the meeting on the 19 January 2022, as part of the discussion around the action plan, Mr Ashbridge provided the claimant with a copy of an interview template that was contained on the Police Visual Handbook and confirmed that the claimant had access to the Handbook (see p.186).[74]The action plan was successful, this being confirmed at the meeting on either 18 or 22 February 2022. Conclusions on first unfavourable treatment allegation[75]The first unfavourable on which the claimant brings his discrimination arising from disability claim is that on 19 January 2022, the respondent issued the claimant with an action plan in respect of his work. The tribunal concludes that this is not unfavourable treatment of the claimant.[76]First, the claimant had experience of a SMART action plan, which assisted him to successfully pass Knowledge Check 2, after he did not initially pass it. The claimant raises no such concerns of using a SMART action plan (whether you call it an action plan or a development plan, they are the same thing) being put in place at this time. That is because he must have known it was there to assist him. And it did assist him. The claimant from this experience must have known that the action plan put in place on 19 January 2022 was also a tool that had been put in place to assist him.[77]Secondly, part of the claimant’s reasonable adjustment claim was that the respondent had a practice of not providing constructive feedback, with SMART objectives broken down into relevant parts. In other words, he was complaining that not having such SMART action plans/objectives in place was causing him a substantial disadvantage. So, to then present a case that when one was put in place it was subjecting him to an unfavourable treatment is difficult to accept.[78]Thirdly, the claimant followed the action plan, which ultimately led to a successful interview being undertaken, with that unit then being marked as having been completed. In other words, it benefitted and assisted the claimant (in much the same way as the development plan put in place in respect of Knowledge Check 2).[79]And fourthly, this action plan was put in place in circumstances where it had been identified that the claimant had fell below the desired standard in interviewing, such that he was in breach of PACE. The SMART action plan is broken down into specific objectives and requirements. And explains specifically what the claimant must do.[80]In these circumstances, not only does this tribunal conclude that the claimant did not consider this to unfavourable treatment (especially given the way he brings his reasonable adjustment claim and the way it assisted him, as intended), but it would not be reasonable to view it as such even if he had convinced the tribunal that he did. Additional findings relevant to second unfavourable treatment allegation: on 22 February 2022, placing the Claimant on an Unsatisfactory Probationary Officer Process?[81]At the meeting across 18 and 22 February 2022, between the claimant and Mr Ashbridge, a number of matters were discussed in detail with the claimant afforded the opportunity to respond. These included:a. The claimant has successfully completed the action plan (noted above)b. There were occasions when the claimant was not meeting deadlinesc. That there were some issues with the claimant’s ePNB.d. That the claimant was not completing intelligence reportse. That Preston deployments arranged to help the claimant on 08 and 09 February 2022 had not been completed, and no reasn had been provided as to why they were not completed.f. That the claimant has completed some MS Teams training on NICHE and was due to attend classroom-based training on 23 and February 2022.g. That there were issues with the way the claimant recorded items seized, and he failed ot secure the transit store. This being a breach of policy, and being recorded as a near-miss.h. That the claimant still had learning to complete around Stop and Search, this being a view formed by Mr Ashbridge after viewing the claimant’s footage of his first live search.i. That there were issues around how the claimant dealt with an abusive and threatening male, including failing to wear his body camera in breach of policy.[82]Mr Ashbridge concluded that the claimant would not be signed off as IPS. And made a decision to refer the claimant for UPOP. At this meeting, it was explained to the claimant that the UPOP process was designed to support the probationer rather than to be punitive (see p.193)[83]Mr Ashbridge did not have the authority to place the claimant on UPOP. This was referred to Mr Mitchell, who did have that authority (see emails at p353 and p.355).[84]The UPOP process (see pp.107-120) is in effect a prolonged action plan. With any action plan mutually agreed between the parties. This is a supportive policy aimed at breaking down tasks into SMART objectives.[85]The claimant, in the circumstances, should have been placed on to UPOP. This is the claimant’s own evidence when asked directly by Tribunal member Flynn.[86]The UPOP process commences through an informal meeting. Mr Mitchell was planning on meeting with the claimant to hold this informal meeting. This informal meeting was to discuss what issues have been going on and to make a decision as to whether the matter should progress to the formal UPOP process, whether to rewind somewhat, or whether the issues can be manged though putting in place other actions. These options were all open to Mr Mitchell, as the decision maker. As part of this meeting, the claimant would be asked about whether there are any mitigating circumstances. However, the claimant resigned before this informal meeting could take place.[87]The UPOP process could extend the process for some 12 weeks before moving form stage to stage 2, and a further 12 weeks before moving from stage 2 to stage 3, which is panel focussed.[88]On 01 March 2022, the claimant sought advice from Mr Agate by email on 01 March 2022. And followed up with a phone call on or around that day. Mr Agate explained to the claimant that UPOP was a process designed to help probationary officers reach the required standard for IPS. And that it would be through SMART action plans, regular progress reviews and resolving problems that arise but before they became an issue. Mr Agate also explained that during this process the respondent would consider any adjustments that were deemed necessary (the claimant accepted that Mr Agate’s statement in respect of the process was accurate). Conclusions on second unfavourable treatment allegation[89]On the face of it, being referred to UPOP, which stands for ‘Unsatisfactory Performance of Probationary Officers’ could quite easily be conceived as being unfavourable treatment. As this can be perceived as being a punitive action for unsatisfactory performance. However, the details of the process are important when considering whether placing or referring a person to UPOP is an unfavourable treatment.[90]There were several failings identified in the claimant’s performance and this was after his tutoring period had been extended twice (albeit not for performance reasons). With the claimant explaining to the tribunal that he was ‘not disputing’ that he should have gone onto UPOP. His concern, he explained was not that he was put on UPOP but that he was being put on it without first discussing his disability.[91]However, the claimant had agreed to an Occupational Health referral at the meeting at which he was informed that Mr Ashbridge was recommending that the UPOP process be applied to him. He was therefore aware that he would have had the opportunity to raise concerns about his dyslexia and/or dyscalculia.[92]Alongside this, the all the evidence points to the UPOP process being a supportive mechanism, which if proceeded with, is formed of SMART actions designed to help probationary officers each the standard of IPS. Given all the above, the referral to UPOP does not reach the level of being unfavourable treatment. Additional findings relevant to third unfavourable treatment allegation: on 3 March 2022, Temporary Superintendent Rams refusing the Claimant’s request to withdraw his resignation[93]On 28 February 2022, the claimant was told that redeployment to a station other than Carlisle was not possible. And that the claimant would have to undergo UPOP at Carlisle. This process would have to be completed first, and that IPS would have to be achieved in advance of any potential transfer. And that was the position the claimant was in. The claimant knew and understood this (see para 80 of the claimant’s witness statement). The claimant also confirmed that he was aware that a transfer was not possible under cross examination.[94]The claimant had no intention of returning to work at Carlisle. When the claimant was interviewed on 30 September 2022 by Dr M Cheeseman (the report is at pp.198-228), when discussing his resignation and the involvement of Mr Rams (Mr Rams’s only involvement in this case concerned whether to allow the claimant to withdraw his resignation) the claimant explained to Dr Cheeseman that that ‘he did not feel it was appropriate to return to Carlisle as he felt he was being set up to fail’. And when cross- examined the claimant explained that he ‘was not prepared to go to Carlisle, as he had not been given assurances that he would be treated fairly’. Conclusions on third unfavourable treatment allegation[95]When the claimant sought to have his resignation rescinded, the only option to him was to return to Carlisle. However, the claimant’s evidence before this tribunal, which led us to our finding above, was that he was not prepared to return to Carlisle. In those circumstances, the refusal to rescind the resignation of the claimant is found not to be an unfavourable treatment. The claimant could not have viewed it as an unfavourable treatment given the stance he had taken in respect of returning to Carlisle, nor would it be reasonable to do so in those circumstances. Failure in the duty to make reasonable adjustment allegations PCP 1: a practice of not providing structured and written materials to support learning.[96]Amending the claim to allow such a PCP to be included in this claim was refused (see above). PCP 2: A practice of not providing an opportunity for repeating processes during phase 2 (that being the tutoring/in-company period) of the learning.[97]The claimant was provided with the opportunity for repeated practice in relation to the NICHE system, stop and search, interviewing of suspects and in personal safety training.[98]In respect of the NICHE system, Mr Mottershead’s evidence at paragraph 40 and 41 of his witness statement describes the steps taken to ensure that the claimant had the opportunity to learn the NICHE system through repeating processes. This is supported by the claimant’s own witness evidence at paragraph 53, where he describes that due to his weaknesses in short-term memory, the claimant ‘had to continually ask PC Mottershead to talk [him] through the steps for the basic tasks’. In other words, theSE tasks were subject to repeated practice.[99]In respect of stop and search, when it became clear that there was a lack of opportunity to complete this skill at Carlisle, Mr Ashbridge arranged for the claimant to be deployed to Preston on 5 separate dates. This was to expose the claimant to potential stop and searches as part of the County Lines team. At the meeting on 19 January 2022, it was further explained that more will be planned after 09 February 2022 (the fifth of those dates arranged. Although the dates did change. See p.184 and p.190). The claimant does not dispute that these arrangements were made. And although the claimant only attended at one of these deployments (primarily due to operational reasons), this does not impact upon the question as to whether such a practice exists or not. Especially given that the claimant was not querying the authenticity of such arrangements. In other words, the respondent was putting in place the opportunity to repeat processes through these arrangements.[100]In respect interviewing of suspects, the claimant in his oral evidence accepted that he was provided the opportunity to observe interviews (plural) with Mr Mottershead, during which he was encouraged to take more of an active role after the initial observations. And this is a finding we make.[101]The claimant interviewed a suspect on 04 January 2022, in which he was the lead interviewer (see p.184). This was to put into practice his learning with a view to passing that particular unit.[102]The claimant accepted in evidence that at the meeting on 19 January 2022, Mr Mottershead providing him with feedback as to what went wrong in the interview on 04 January 2022 (as recorded on p.184). This included the interview being in breach of PACE (again accepted by the claimant under cross examination). As part of the meeting on 04 January 2022, the claimant was informed that he was being put on an action plan with respect interviewing of suspects. Two further interviews were set up. These were assessed as having been completed successfully.[103]In short, the claimant was given the opportunity to learn through repeating interview processes, with increased engagement by the claimant followed by constructive feedback.[104]In the circumstances identified above, the tribunal concludes that the claimant himself was given the opportunity to learn through repeated processes. The claimant has failed to satisfy the tribunal of facts from which it could conclude that there was a PCP of not providing an opportunity for repeating processes during phase 2 (that being the tutoring/in-company period) of the learning. PCP 3: A practice of not providing constructive feedback, with SMART objectives broken down into relevant parts.[105]Given our findings above, the tribunal is satisfied that no such PCP was applied by the respondent. The claimant was given constructive feedback and provided with SMART objectives as a matter of fact on two occasions. And further, as the tribunal has found above, the UPOP process itself is a prolonged period that the respondent makes use of, and is based on action plans containing SMART actions.[106]In respect of the second occasion, the claimant’s own evidence under cross examination was that he was set an action plan on interviewing suspects, this including specific details that were broken down, and this was in the form of SMART objectives.[107]Given that we have concluded that the evidence supports that the respondent did provide the claimant with constructive feedback, and that SMART actions and SMART objectives were set by the respondent when required, this part of the claim must fail. PCP 4: A practice of not engaging with Occupational Health in advance of probationary input.[108]Given our findings above, the tribunal is satisfied that there is no such practice. The claimant had been assessed prior to commencing the education part of his role at Spring House. The first of which was on 10 June 2020 (the report starts at p.134) and the second of which was on 23 April 2021, following a referral made on 30 March 2021 (see pp.151-152). And further, Mr Ashbridge agreed with the claimant to make a further occupational health referral at the meetings on 18 and 22 February 2022 (this is recorded in the tenth paragraph on p.192, and again as an action point for Mr Ashbridge at p.193).[109]As the tribunal has found that there is no PCP of not engaging with Occupational Health in advance of probationary input, this part of the claim must fail. OVERALL CONCLUSIONS[110]The tribunal has found that the respondent did not have actual or constructive knowledge of the claimant’s disability at the material times. On that basis, the claims in their entirety fail and are dismissed.[111]Even if the tribunal is wrong on that conclusion, the claims all fail in any event for the following reasons:a. The tribunal was not satisfied that any of the three alleged unfavourable treatments on which the discrimination arising from disability allegations were brought reached the level of being unfavourable treatments/detriments. And therefore, this category of complaint would be dismissed on that ground.b. The tribunal was not satisfied that the respondent had actual or constructive knowledge of the substantial disadvantage on which the claimant brings his allegation that the respondent failed in its duty to make reasonable adjustments. Nor was the tribunal satisfied that the respondent applied the PCPs on which this complaint was brought. So, in those circumstances, the claims would have failed in those respects.[112]The tribunal, adopting a proportionate approach to its decision making, does not consider it necessary to consider this matter any further.[113]For the avoidance of doubt, the claimant’s claims in their entirety are not well-founded and are all dismissed, for the reasons outlined above.