Mr J Bassett v Commissioner of Police of the Metropolis: 3305727/2024
EMPLOYMENT TRIBUNALS
Case No 3305727/2024
Between
Mr J BassettClaimantCommissioner of Police of the MetropolisRespondent
Before
Employment Judge Gumbiti-Zimuto
Members
Mr P Hough and Mr M BhattiIn person for claimantMr C Rix (instructed by counsel) for respondentDate 7 January 2026
JUDGMENT
The claim is dismissed.
REASONS
[1]The Claimant is a serving Police Constable with the Metropolitan Police and has been since 21 July 1997. Since 2019 the Claimant has been based within the Sensitive Intelligence Unit (SIU). At the relevant time Jamie Witts was a Detective Sargeant in the SIU and the claimant’s line manager from 4 December 2023 until July 2024.[2]Following a road traffic collision in 2002 and a further incident in 2012 (both while on duty) the Claimant sustained injury which resulted in underlying health conditions that mean he is a disabled person by reason of physical impairments.[3]In 2019, when the Claimant joined SIU, he worked full-time in the office and carried out field activities.[4]During the COVID pandemic the Claimant was considered highly vulnerable due to his medical conditions. By Government advice the Claimant was required to ‘shield’ (stay at home to avoid the virus) during the COVID pandemic. From March 2020, the Claimant has worked exclusively from home on adjusted duties.[5]The Claimant’s current role is desk-based and Occupational Health (OH) has declared the Claimant non-deployable and he should not undertake certain aspects of his role as a police officer. Page 1 of 11[6]The Claimant’s current work comprises desktop investigations, intelligence development, analysis, report-writing and remote meetings on secure, audited systems with multi-factor authentication. Since 2020 the Claimant has successfully worked exclusively from home.[7]After COVID restrictions eased the Claimant requested permanent working form home as a ‘reasonable adjustment’.[8]The Claimant’s OH report, following a telephone assessment on 21 November 2023 stated that: “Since coming out of the lockdowns, he has remained working from home. He is very anxious about catching Covid and how seriously it may affect him [and consequently impact on his family], and this leads to his concern about returning to police buildings. He is also very cautious to avoid Covid in his day to day life e.g. avoiding social gatherings.” The report states that the Claimant is fit for his current role which is office-based but his ability to be fully operational is impaired.[9]The OH report also contained the following sentence: “I do not consider him too highly clinical vulnerable that he cannot work in a police building as long as sensible precautions are taken, given the background prevalence of Covid.”[10]In December 2023 the Claimant’s GP had stated that the Claimant was “at big risk if he were to catch COVID again”. The GP stated that the Claimant travelling to and from work was not “in his best interest” and that the risk of catching COVID in the office could not be reduced “completely unless he were to be in FP3 mask and more than 2 metres away from everyone and not in an area where you are sharing air.”[11]On 24 January 2024 the Claimant was requested to attend the office on 1 February 2024, 5 February 2024 and 11 February 2024 as part of a phased return. The Claimant did not attend and continued to work from home. The Claimant agrees that he cannot carry out his role in full while working from home. The position of the Respondent is that there are no full time work from home roles “however in some areas blended working maybe supported if the role can be completed at home, based on individual needs regarding health conditions and an officer is completing the full role where applicable”. The Respondent looked for alternative roles for the Claimant to work permanently from home but none are available.[12]Jamie Witt’s sought advice on the Claimant’s request for permanent working from home in the following terms: “Since then he has been assessed by OH and although it is accepted there is still vulnerability, he has been advised he could attend the office with suitable precautions e.g. social distancing, sanitisation etc. James feels this is contrary to advice from his GP and is effectively refusing to return to the office despite our best efforts to accommodate him. While he is not refusing to work, he cannot perform his role to the full extent from home. HR advise the OH assessment takes precedence, that the MPS don’t support permanent Page 2 of 11 working from home and that we should move to formal action but suggested it would be prudent to run the scenario past the DPS.”[13]A referral of the Claimant’s request for consideration of permanent working from home was made on 22 February 2024. The matter was considered and Simon Stancombe’s response on 11 March 2024 was to say that he was “not supportive of PC Bassett permanently working from home in his current role. I would therefore ask that any absence or refusal to come into work is now progressed formally.”13. On 13 March 2024 the Claimant was sent an email by Jamie Witts which stated that it “constitutes the commencement of informal action and should you not attend the office as requested, we will have no choice but to move to formal action, namely UPP Unsatisfactory Attendance and Performance.”14. on 15 March 2024 the Claimant replied stating that his position remained the same and he would “continue to follow my GP’s and Government advice and work from home.”[15]Jamie Witts asked that the Claimant work with the Respondent to implement reasonable adjustments to allow the Claimant to return to work but warned that if the Claimant did not do so he would send the Claimant an invite to a First Stage meeting under the UPP process.[16]Instead of a first stage meeting under the UPP process the Claimant was invited to attend, on 16 May 2024, a case conference to discuss his working arrangements one of the issues to be discussed was “the objective of returning to office working”.[17]At the case conference were Claire Gibbins, Jamie Witts, the Claimant’s Police Federation representative and the Claimant. The Claimant was told that he would not be asked to attend the office until appropriate control measures/reasonable adjustments were in place and he was asked if he would be willing to attend the office once all reasonable adjustments were in place. The Claimant stated that he felt that the risk to his health had been understated in the OH report. The Claimant requested that a risk assessment be carried out.[18]Jamie Witts carried out a risk assessment and sent it to the Claimant for his comments on 14 June 2024. Jamie Witts told the Claimant that he welcomed any other suggestions.[19]On 7 June 2024 the Claimant presented his complaint to the employment tribunal, alleging that he had been subject of direct discrimination, indirect discrimination, discrimination arising from disability and that the respondent was in breach of its duty to him to make reasonable adjustments. The parties have agreed a list of issues to which we refer in the judgment below. Time Limit Page 3 of 11[20]The time limit for the presentation of complaints of discrimination is set out in section 123 Equality Act 2010. Relevant to this case, the time limit is the period of three months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable. The Claimant contends that there has been conduct extending over a period and therefore section 123(3) Equality Act 2010 applies and provides that where there is conduct extending over a period it is to be treated as done at the end of the period. The failure to do something is to be treated as occurring when the period in question decided on it. Taking all circumstances into account and considering the nature of the dispute int his case and the way matters have progressed we do not consider that there is any prejudice to the respondent in extending time for the presentation of complaints where it is required. Section 20 and 21 Equality Act 2010[21]In this case the relevant provision of section 20 Equality Act 2010 is contained in subsection (3) which provides that: “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” A substantial disadvantage is something that is more than minor or trivial.[22]By operation of section 136 of the Equality Act 2010, the Claimant must prove facts from which it could reasonably be inferred, absent an explanation, that the duty has been breached. The burden then shifts to the Respondent to show that it would not have been reasonable to expect them to make that adjustment. Substantial disadvantage[23]At paragraphs 31 to 57 of the written closing submissions and in oral submissions the Respondent contends that the Claimant was not placed at a substantial disadvantage because of the PCPs.[24]The Respondent argues that the Claimant did not work from home prior to the COVID pandemic. The situation at the relevant time, the period covering the events leading up to the presentation of the claim and since the Claimant has presented claim, is post pandemic thus effectively the same as it was before the pandemic. The Respondent says that the need for the Claimant to work from home no longer pertains. The Claimant is now no more at risk than he was before the pandemic so there is no substantial disadvantage.[25]Relating to PCP1 the Respondent contends that the “the risk of catching Covid-19 is a transient one… the level/extent of any disadvantage changes with time as opposed to being fixed at a constant amount.” The Claimant would have been at a substantial disadvantage at the height of the pandemic but this changes with the pandemic evolving and then ending. Page 4 of 11 “Consequently, R submits that there must have come appoint following the pandemic where the risk that Covid-19 posed to C was no more or any different to those who were not disabled (and/or no more than the risk of catching other viruses prior to the pandemic). Alternatively, that there came a point where any additional risk posed to C was so minimal it no longer constituted a ‘substantial disadvantage’. The more time that passed from the height of the pandemic, the lower the risk became before it eventually fell below the ‘substantial disadvantage’ threshold (i.e. where things returned to their precovid status quo).”[26]The Respondent points to the contents of the OH reports of 15 May 2023, 8 August 2023 and 21 November 2023 as showing that the Claimant is fit for work including office based work and that the Claimant is “not likely to be considered in the category of people whose immune system means that they are at higher risk from Covid-19 as defined by current Government guidance.” Further that the Claimant could work in a police building with suitable precautions being taken. The Respondent argues that the OH reports show that there was no medical reason why the Claimant could not attend the office.[27]The Respondent additionally points to a letter of 20 December 2023 from the Claimant’s GP which the Respondent says supports the conclusion that the risk of Covid-19 could be ‘completely reduced’ by taking precautions. The Respondent also points to Government guidance which it states no longer provides for clinically extremely vulnerable (CEV) people to shield and states that “Most people who were part of this CEV patient cohort are no longer at substantially greater risk than the general population and are advised to follow the same guidance.” Reasonableness of adjustment[28]The respondent states in paragraph 59 of its closing submission: “… the Tribunal needs to conduct its analysis in this case within the context of R as an organisation, and its aims and responsibilities. Specifically, that it is not an organisation that is suited to working from home and therefore does not promote it as such. It is also submitted that working from home generally causes a significant impact on R and its ability to meet its operational demands.”[29]In deciding whether an adjustment is reasonable it is necessary to look at the nature of role being performed and whether the adjustment sought permits the role to be properly performed, the adjustment may mean that the role is not performed as the parties would have originally intended, however such adjustment must be reasonable. The nature, aims and responsibilities of the employer organisation are important considerations Page 5 of 11 when considering whether the adjustment sought is a reasonable adjustment.[30]The first adjustment that the Claimant sought is permanent working from home. The Respondent states that “as per Ahmed, such an adjustment fails to consider the possibility of change in C’s condition”. The Claimant says that this argument does not assist the Respondent there is no likelihood of a change in the Claimant’s condition that means he is less likely to require adjustments. There might be a change in the environmental conditions, e.g. new Covid variant, but there is not going to be any change in the Claimant’s condition as the Claimant pointed out he is not going to “grow a new spleen or another kidney”.[31]The Respondent has sought to make adjustments to the Claimant’s work place to mitigate potential risks to the Claimant. The Claimant has not engaged with the Respondent in this regard as he takes the view that there are no effective adjustments to be made with “the only effective adjustment” being the Claimant working from home.[32]The Respondent contends that permanent working from home is not reasonable because the Claimant is medically fit to attend the office and working from home the Claimant cannot fulfil all his duties. The evidence of Simon Stancombe set out various reasons outlining security concerns and the effectiveness of performance when working from home to explain why the Claimant working from home was a problem for the Respondent. (N.B. it was not suggested that there were any performance concerns about the Claimant’s actual work while working from home.). The Claimant accepted that he was not able to carry out the full scope of his role while working from home and that this had knock consequences for his colleagues and the organisation of the workplace.[33]The Claimant has worked from home since March 2020 and at the date of the Tribunal hearing continued to work from home. The Respondent contends that the Claimant’s working from home arose out of necessity during the Covid-19 pandemic and was an exceptional circumstance that no longer applies. The Respondent states that it is not reasonable to allow the Claimant to continue to work from home permanently. The Respondent was willing to tolerate the deficiencies of working from home during the pandemic but does not consider that it is reasonable to continue to do so.[34]The second adjustment that the Claimant says the Respondent could have made is to find him an alternative role that meant that he could have worked from home. The evidence presented to the Tribunal was that the Respondent does not have full time working from home roles. The OH reports did not say that the Claimant was unfit for his role. There were attempts to find the Claimant an alternative role but there was not one available.[35]The third adjustment that the Claimant seeks is “postponing and/or disregarding the instigation of the UPP process until such time as Page 6 of 11 alternative roles are fully explored and considered which may allow the Claimant to work from home exclusively.”[36]The Respondent points out that the UPP meeting that had been scheduled never took place and was instead turned into a case conference. The Respondent says that in fact the adjustment sought has been made. The Respondent says that sending the email of 27 March 2024 in which the Claimant was informed that formal action via UPP would commence was not unreasonable in the circumstances, where the available evidence was that the Claimant was fit to attend the office and could not fully perform his role from home.[37]The Claimant contends that the only effective adjustment is allowing him to work from home. The Claimant refers to being in a “loop of doom” where he cannot go to the office because he is immunosuppressed but then it is said that he cannot fully preform his role from home and the Respondent is unable to find him a role that he can perform from home. The Claimant makes the comparison between Covid deaths and road deaths, highlighting the extent to which measures are taken to address road safety which has, the Claimant contends, 31 deaths a week in contrast to Covid which has (at the time that the Claimant last checked) 154 deaths a week. The only measures that are provided for Covid are wearing masks, ‘social distancing’, the regime of extensive testing for Covid has ended and Covid is treated by many as though it were a common cold. However, the Claimant contends that for him the threat remains serious because of his condition and the Claimant says that “we are just a new variant away from being in a disaster again”. The Claimant pointed out that in the office where he is expected to work there had recently been two outbreaks of Covid, he found this out by chance, the respondent has no defined mechanism to alert people of Covid. The Claimant also points out that in any event he would always be in particular danger due to asymptomatic transmission.[38]The Claimant contends that it is not reasonable to threaten him with disciplinary action when he has no performance issues. The Claimant points out that the Respondent is able to achieve a saving on desk space by the Claimant working from home. Finally, the Claimant states that the Respondent’s position is unreasonable because he remains clinically extremely vulnerable (a status that he says has never been rescinded) and that the Respondent’s reliance on OH advice is misconceived because the OH advice is driven by the Respondent’s policy objectives rather than the clinical needs of the Claimant. The Claimant says that the medical evidence/opinion of his GP is to be preferred to that of the OH doctor. The Tribunal’s conclusions reasonable adjustment complaints[39]The Tribunal concludes that the Respondent has not breached its duty to make reasonable adjustments.[40]The conclusion of the Tribunal is that the Claimant’s position is such that he does suffer a substantial disadvantage. The Claimant’s perception of Page 7 of 11 the risk he faces from the quotidian activities of travelling to work and working in an office with colleagues is different to what it was before the Covid-19 pandemic. The Claimant continues to be at risk from Covid in away that someone without his disability is not. We recognise that when considering substantial disadvantage, that there is the risk of the Claimant catching Covid in respect of which the Claimant’s position is not different to a person without his disability and the consequences should the Claimant catch Covid. In respect of the latter the Claimant considers that he is ‘at risk of death’ in a way that a person without his disability is not. Whether or not the Claimant is correct medically or scientifically about the risk, we are satisfied that he considers that there is a significant and real risk to his life which is outside the ordinary daily risk that one faces when one carries on their normal day to day activities such as going to work, travelling on public transport, socialising with colleagues and such like. In our view this cocktail of circumstances int eh Claimant’s case does place the Claimant at a substantial disadvantage in a way that he did not before the Covid-19 pandemic.[41]For the Claimant to succeed in a claim pursuant to section 20 and 21 Equality Act 2010 there has to be a breach of the duty to make reasonable adjustments. That position arises, as relevant here, where there is a failure to take such steps as it is reasonable to take to avoid the disadvantage arising from the operation of the relevant PCP. In this case the PCP’s are not, at the time that the claim is concerned with, resulting in the relevant disadvantage because adjustments have been made and continue to operate.[42]The Claimant continues to work from home and the Respondent has not yet taken any action to prevent the Claimant from continuing to do so. The Respondent has tried to engage with the Claimant to arrive at a situation where the conditions are such that the Claimant can return to work, and the Respondent’s position is that the Claimant will not be compelled to return to work until necessary precautions have been taken. The Respondent’s actions have been entirely fair and reasonable thus far.[43]The Respondent has threatened taking action via the UPP. This process is the way that the Respondent considers appropriate to move the position forwards. The Respondent has not in fact yet taken action under the UPP and so in effect the adjustment sought by the Claimant has been effected, instead of a formal UPP meeting the Respondent held a case conference with the Claimant to discuss a way forward.[44]The Claimant is not classified as medically unfit to do his role from the office, efforts have been made to find alternative role for the Claimant, but these have failed. There is no failure to make a reasonable adjustment in such circumstances where attempt to find a role has been made but none is available. Section 15 Equality Act 2010: Discrimination arising from disability[45]Section 15 Equality Act 2010 provides that: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if (a) A treats B unfavourably because of something Page 8 of 11 arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[46]The Claimant here relies on unfavourable treatment of “threats of informal action and instigation of the UPP process which is because of the Claimant’s inability to attend work from the office.”[47]The something arising that the Claimant relies on is “the requirement to work from home”.[48]The evidence presented to the Tribunal does not show that there was a medical requirement to work from home. The evidence shows that there was no medical reason why the Claimant could not attend the office. The evidence from the Claimant’s GP falls short of stating that the Claimant cannot attend the office, rather it says that precautions need to be taken to remove the risks to the Claimant. It is rather the Claimant’s perception of the risk posed to him by attending the office that results in the Claimant not being able to attend the office. This perception in our view is because of the Claimant’s disability and therefore the Claimant’s inability to attend work is the converse of the requirement to work from home and is something arising from disability.[49]The Respondent says that its actions were a proportionate means of achieving a legitimate aim. The aims relied on are: “requiring officers to carry out the full requirements of their roles based on medical advice” (“Aim 1”); and “instigating the formal UPP process following lack of resolution arising from the informal process.” (“Aim 2).[50]The Claimant’s submissions are summarised above at 37-38.[51]The Tribunal considers that both stated aims are legitimate and we note that the Claimant does not suggest that they are not.[52]Where the Claimant does take issue with the Respondent is on the question of proportionality the Claimant says that faced with a situation where the Claimant fears that he is at risk because of his disability that it is not proportionate for the Respondent to threaten him with disciplinary action.[53]The Tribunal accepts the evidence of Simon Stancombe setting out important operational reasons for why police officers need to be attending the office at least some of the time. The Claimant was not able to fulfil his role in full whilst working from home.[54]The medical evidence before Jamie Witts when he took the action he did stated that the Claimant was medically fit to attend the office, and that any risks posed by the office could be mitigated by sensible precautions (see OH reports of 15 May 29023 and 21 November 2023). The OH physician had access to the Claimant’s GP’s letter but this did not change his position. Page 9 of 11[55]It was reasonable for Jamie Witts to require the Claimant to attend the office some of the time. Jamie Witts attempted to engage with the Claimant to find ways to mitigate the risk to the Claimant by taking precautions so that the Claimant could agree to attend the office. The meeting that had been earmarked as a UPP meeting was in fact converted to a case conference.[56]The Tribunal is satisfied that the actions of the Respondent were in all the circumstances reasonable and a proportionate means of achieving a legitimate aim. Section 19 Equality Act 2010: Indirect disability discrimination[57]Section 19 Equality Act 2010 provides that: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”[58]The Respondent contends that it is reasonable and proportionate for a large police force to require its officers to attend the office at least some of the time, particularly where they cannot fully complete their duties at home. The Respondent contends that PCP1 “is proportionate on the basis that it is informed by specialist OH medical advice, and not assumptions by R about the health and/or reasons why the officer could not attend the office.”[59]The Respondent says that PCP2 is reasonable and proportionate. It is reasonable and proportionate for “a large police force to operate a PCP whereby where a police officer is deemed fit to attend the office but chooses not to, refuses to engage in meaningful discussions about returning to the office part-time, and cannot fulfil their full duties at home, such an officer may be subject to the UPP process.” With such a PCP, officers could simply refuse to attend the office and fail to fulfil their full duties without any consequence or repercussions. The Respondent contends that its actions were proportionate because the respondent sought to explore informal resolution.[60]The Claimant’s submissions are summarised above at 36-37.[61]For the reason set out above the Tribunal is satisfied that the Respondent’s actions were proportionate means of achieving a legitimate aim.[62]The Claimant’s claim is therefore dismissed. Page 10 of 11 Approved by: