Mr D Warburton v Chief Constable of Bedfordshire Police: 3306357/2020

EMPLOYMENT TRIBUNALS

Case No 3306357/2020

Between

Mr D WarburtonClaimant

Chief Constable of Bedfordshire PoliceRespondent

Before

Employment Judge Graham

Members

Ms H Edwards and Mr Doyle

In person for claimant

Ms Von Wachter (instructed by Counsel) for respondent

Date 22 August 2023

JUDGMENT

The unanimous decision of the Employment Tribunal is that:

[1]The complaint of victimisation fails and is dismissed.

[2]The complaint of discrimination arising from disability fails and is dismissed.

[3]The complaint of failure to implement reasonable adjustments fails and is dismissed.

REASONS

Claim

[1]The Respondent is a large police force with approximately 1,300 police officers. By a claim form presented on 3 July 2020, the Claimant brings complaints of disability discrimination (for reasonable adjustments and discrimination for something arising in consequence of disability) and victimisation. The claim concerns the decision to refuse the Claimant vetting clearance to join as a police officer.

[2]By ET3 Response dated 23 October 2022, and a re-pleaded defence of 15 February 2023 the Respondent has denied the claim. Issues 10.5 Reserved judgment with reasons – rule 62 1 March 2017

Issues

[3]A private preliminary hearing for case management took place on 22 July 2022 before Employment Judge Dobbie. The issues between the parties which fall to be determined by this Tribunal were discussed and agreed with both parties at the hearing. Further clarification of the issues (specifically the reasonable adjustments) was provided by the Claimant’s solicitors on 11 August 2022 and an updated list of issues was produced on 23 January 2023. Disability

Issues

[1]At all or any material time(s) was the Claimant disabled by reason of anxiety and depression within the meaning of s.6 Equality Act 2010 (EqA)? Specifically:(a) Did he have a mental impairment?

(b) If so, were the effects substantial and affect his day-to-day activities?

[2]The Respondent concedes that the Claimant did a protected act by bringing discrimination proceedings against Hertfordshire Police Constabulary in separate employment tribunal proceedings in 2017 and 2018 (which were determined at a hearing in February 2021).

[3]Did the Respondents do any or all of the following acts / omissions:(a) Mr Lamb considered as part of the vetting process ‘multiple instances’ where the Claimant’s interactions ‘fell way short of the standards’ of somebody wishing to become a police officer and describing his communications as ‘derogatory and offensive’.

(b) Mr Lamb considered as part of the vetting process ‘Many complaints, various attempts of litigation, and a pending employment tribunal’ by the Claimant after his rejection by Herts Police force.

(d) Rejecting the Claimant’s vetting clearance and his application consequently being rejected.

[4]If so:(a) Was such treatment detrimental?

(b) Was such act / omission done because of the protected act? Discrimination arising from disability – S.15 Equality Act 2010

[5]Was the Respondent aware of the Claimant’s disability or ought it have reasonably been aware of the Claimant’s disability? 10.5 Reserved judgment with reasons – rule 62 2 March 2017

[6]Was the tone and language of the Claimant’s communications with the Respondent’s staff as set out at paragraph 20-22 of the Respondent’s response ‘something’ which arose in consequence of his disability?

[7]Did the Respondent do any or all of the following acts?:(a) Mr Lamb considering as part of the vetting process multiple instances’ where the Claimant’s interactions ‘fell way short of the standards’ of somebody wishing to become a police officer and describing his communications as ‘derogatory and offensive’.

(b) Rejecting the Claimant’s vetting clearance.

[8]With regard to each act identified in paragraph 7:(a) Did the act amount to unfavourable treatment; and

(b) Was it done because of something arising in consequence of his disability?

[9]If so, was the treatment a proportionate means of achieving a legitimate aim? The Respondent’s legitimate aim is: to recruit individuals who will become well conducted police officers. Failure to make reasonable adjustments – s.21 Equality Act 2010

[10]Was the Respondent aware of the Claimant’s disability or ought it have reasonably been aware of the Claimant’s disability?

[11]Did the Respondents impose the PCP identified at paragraph 27 of the Particulars of Claim, namely was it a requirement for recruitment for applicants not to be ‘offensive and derogatory’ to members of the Respondent’s staff?

[12]Did the PCP put the Claimant at a substantial disadvantage in comparison with persons who were not disabled, namely, by rejecting his vetting and consequently rejecting his application for employment?

[13]Did the Respondent know, or ought the Respondent have known, that the Claimant was likely to be affected by being placed at that substantial disadvantage?

[14]Did the Respondent fail to take such steps as it was reasonable to take, in all the circumstances of the case, in order to prevent the PCP having that effect? Specifically by Mr Lamb of the Respondent should have either:(a) Disregarded the Claimants communications which were deemed to be offensive, and the derogatory for the purpose of vetting;

(b) Lowered the threshold that was being applied to the PCP in order that the Claimant’s communications were not sufficient to amount to a reason for failing vetting; or 10.5 Reserved judgment with reasons – rule 62 3 March 2017

(c) Offered guidance to the Claimant to manage his communications in future, rather than take them into account for the purpose of failing vetting. 4. We confirmed at the start of this hearing that these were the issues that the tribunal would be determining. Counsel for the Respondent informed us that disability was now conceded at the material time, and that it had knowledge of the disability. 5. During the hearing it was explained to the Claimant that the Tribunal was not acting as a vetting appeal body and as such it would not be in a position to decide whether (as set out in issue 3(c)) Mr Lamb had attempted to rely on irrelevant factors when rejecting the Claimant’s vetting. The Claimant clarified that the complaint was that Mr Lamb had victimised the Claimant for bringing his earlier claim(s) and that many of the matters relied upon by Mr Lamb in his vetting decision were included to pad out his justification for rejecting the Claimant. We were content with this clarification as it set out the specific allegation against Mr Lamb and it could therefore be considered by the Tribunal. 6. During the Claimant’s evidence on day two of the hearing he appeared to advance a new argument namely that he should have been provided with a trial period to see how he performed. This had not been raised before. There was no reference to this in the Claimant’s ET1 or the previous Case Management Summaries, and moreover having reviewed the Claimant’s witness statement dated 27 June 2023 there is no mention of this in there. The Claimant did not put this to any of the Respondent’s witnesses and as this was not advanced further it will not be considered by the Tribunal. 7. Similarly during the Claimant’s cross examination of the Respondent’s witnesses he suggested that Mr Lamb (the vetting officer) could have interviewed him to discuss vetting, or that he could have spoken to the people who had interviewed him for his application as detective constable and police constable in 2019, or Mr Lamb could have spoken to the Chief Constable whom the Claimant knew from another role he had performed. It is understood that these were relied upon for both the reasonable adjustments claim and also the complaint of discrimination arising from disability. 8. These had not been raised in the Claimant’s additional information of 11 August 2022 nor in the updated list of issues dated 23 January 2023. Had the Claimant wished to advance these before he had more than sufficient time to seek to amend his claim but he failed to do so. It should be noted that the Claimant is a barrister, and has been legally represented throughout much of his claim and continues to be represented although he represented himself during this hearing. Therefore there was no good reason for not raising these matters before cross examination. 9. However, as these were put to the Respondent’s witnesses, and given that they were able to deal with them in their oral evidence, these will be considered by the Tribunal given that in some cases proposed adjustments may not become clear until the tribunal hearing – Project Management Institute v Latif

[2007] IRLR 579

. 10.5 Reserved judgment with reasons – rule 62 4 March 2017 Disability 10. The Claimant suffers from a mental impairment. We were provided with an expert psychiatric report prepared by Dr Pardeep Grewal dated 28 April 2020 [bundle page 59-65] prepared for the purposes of a different claim that the Claimant was involved in during 2020. That report indicates that in the opinion of Dr Grewal, at that time, the Claimant was suffering from a severe depressive episode without psychotic symptoms. 11. Of most relevance to these proceedings was the reference in the report to irritability associated with depressive disorder which impaired the Claimant’s ability to communicate safely and effectively with people around him. Examples included frequent arguments and angry exchanges. It also refers to feelings of worthlessness and low self-esteem which impaired the Claimant’s ability to socially interact with other people, especially those whom he is dealing with for the first time. We also noted that the report said that it is also likely that the Claimant’s verbal interactions with prospective employers could be angry and frustrated, and that such outbursts would have been disproportionate, but difficult for the Claimant to control. 12. The report also states that his symptoms of depressive episode were likely to continue until he was able to stabilise and secure his employment and this would improve his self-esteem and sense of purpose. 13. In previous employment tribunal litigation under case references 3328266/2017 and 3332251/2018 Employment Judge Smail found the Claimant to have been disabled within the meaning of the Equality Act 2010 [bundle page 44-54]. The material time for the purposes of that finding was May to July 2017. 14. The Respondent in these proceedings concedes disability and knowledge of the disability but invites the Tribunal to consider whether some of the Claimant’s previous behaviour (the offensive or derogatory correspondence) was not caused by the Claimant’s disability but rather that is he is who he is as a person, in other words that was his personality and that it was exacerbated by his disability. The Respondent relies upon the dicta of Employment Judge Smail [bundle page 47] where he noted that the Claimant had always had problems with relationships and communication. The Respondent says that there is evidence that the Claimant is a man of challenging character and that this is an inherent part of his personality, and that these challenging characteristics are exacerbated by his disability.

[15]There was insufficient evidence before this Tribunal which would support a conclusion like that. We find that the Claimant’s offensive and derogatory correspondence referred to in these proceedings arose out of his disability, and this is clear from the contents of the report of Dr Grewal dated 28 April 2020. Procedural history

[16]A public preliminary hearing took place on 2 November 2022 to consider the Respondent’s applications for a strike out of the claim or to issue a deposit order in the alternative. These applications came before 10.5 Reserved judgment with reasons – rule 62 5 March 2017 Employment Judge Daniels who found that they were not well founded and dismissed them. The Claimant made an application for costs with regards to that hearing, however this was deemed to be premature and was not considered further at the time.

Hearing

[17]We were provided with a bundle of 485 pages, a reading list, and witness statements from the Claimant, and for the Respondent we were provided with witness statements form Mr Lamb (vetting officer) and Mr Jeram (vetting appeals decision maker). On the first day of the hearing the Claimant provided a supplementary bundle of 31 pages and also brief opening submissions which we found helpful. The supplementary bundle had not been agreed or provided to the Respondent beforehand however pragmatically they did not object, save to query the relevance of it to the issues to be decided. The Tribunal panel was content for both to be admitted and noted that the supplementary bundle was only a small addition and may have some relevance to the cross examination.

[18]The Claimant’s witness evidence was heard on day one and the morning of day two of the hearing. We heard evidence from Mr Lamb on the afternoon of day two. On day three we heard evidence from Mr Jeram followed by closing submissions (half an hour for the Respondent and forty minutes for the Claimant). The hearing was conducted via CVP. There were no interruptions in the feed although the parties had to be reminded not to speak over each other. Applications

[19]At the start of the hearing the Claimant made an application to exclude Mr Lamb and Mr Jeram from the hearing whilst he was being cross examined as he said that it was unfair for them to hear his evidence before they were cross examined by him. The Respondent objected to the application, and after deliberating we rejected the application as this was a public hearing, we placed weight on principle of open justice, and whilst the Tribunal has the power under Rule 43 to exclude witnesses if it would be in the interests of justice to do so, we saw no sufficiently strong reason to do so.

[20]On the last day of the hearing the Claimant sought permission to rely on an additional document which was a screenshot from the website of Thames Valley Police (“TVP”) who had briefly employed the Claimant as a Special Constable. The screenshot was relied upon by the Claimant to show that as TVP followed national vetting guidelines and had appointed him then this would undermine the Respondent’s arguments for not appointing him. The document had only very marginal relevance to the claim and little or no prejudice would be caused to the Respondent whose witness could not speak for TVP therefore the Tribunal allowed it into evidence. Following the conclusion of the hearing the Claimant sent an email to the Tribunal which contained an exchange with TVP from earlier that day about whether that organisation would have allowed someone to start work without vetting clearance. The email was not copied to the Respondent and the Claimant was informed that he would need to do so before a decision was reached on admissibility. 10.5 Reserved judgment with reasons – rule 62 6 March 2017

Findings of fact

[21]From the information and evidence before the Tribunal it made the following findings of fact. We made our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgment all of the evidence which we heard but only our principal findings of fact, those necessary to enable us to reach conclusions on the issues to be decided.

[22]Where it was necessary to resolve conflicting factual accounts, we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against any contemporaneous documents. We have not referred to every document we read or were directed or taken to in the findings below, but that does not mean they were not considered.

[23]The Claimant has considerable experience in the areas of policing and criminal law, and only those aspects to which we were referred or are relevant are recorded here. The Claimant was employed as a police constable with West Midlands Police (“WMP”) from February 1998 until November 1998. After leaving WMP the Claimant joined the Army but was medically discharged six months later following an injury.

[24]From June 2004 to January 2005 the Claimant was employed by Avon and Somerset Constabulary (ASC) as a Crime Decision Maker. The Claimant was then employed by the University of the West of England as a Lecturer in Law between January 2005 and July 2009. Following this the Claimant completed the Bar Vocational Course and was called to the Bar in 2010. Between 2003 and 2007 (save for a seven month gap) the Claimant volunteered as an Independent Custody Visitor with Lothian and Borders Police, and subsequently with ASC.

[25]Between May 2011 and December 2013 the Claimant was employed as a lecturer in law at the University of Buckingham. The Claimant applied to become a Superintendent with the Metropolitan Police Service (“MPS”) in 2014 but was unsuccessful. Later that year the Claimant applied to the MPS to become a police constable but he rejected the role when it was offered to him in 2015. The Claimant was employed as Head of Law at the New College of Humanities between July 2014 and May 2016.

[26]Since October 2016 to the current date, the Claimant has been an Independent Member of the Bedfordshire Police and Crime Panel. In December 2016 the Claimant applied to Hertfordshire Constabulary to become a police constable and he passed all parts of the recruitment assessment, and he received an offer in June 2017 which was withdrawn after his vetting clearance was rejected on 23 June 2017. That decision resulted in the Claimant bringing employment tribunal proceedings against Hertfordshire Constabulary for disability discrimination which is the protected act relied upon for the victimisation complaint in this claim.

[27]During 2019 the Claimant submitted two applications for employment with the Respondent organisation. The first was in or around May 2019 for the 10.5 Reserved judgment with reasons – rule 62 7 March 2017 role of Detective Constable however the Claimant was unsuccessful at interview. The second was for the role of police constable in September 2019, and for which the Claimant was successful at interview. This claim concerns the decision to refuse the Claimant’s vetting for that police constable role which will discussed further below.

[28]The Claimant has since commenced barrister pupillage in January 2020. At the start of this hearing the Claimant confirmed that he was no longer pursuing a career as a police officer.

[29]The Claimant was offered the role of Special Constable by Thames Valley Police on 10 September 2020. We understand that the Claimant started his probation training but it was discontinued from November 2020 on grounds that having become a criminal barrister this could have created a potential conflict of interest.

[30]The Respondent, like all other Police forces in England and Wales is subject to a Code of Ethics which was produced by the College of Policing in 2014 as the professional body for policing. It sets out the standards of behaviour expected of those who work in policing in England and Wales.

[31]Chapter 2 provides that “I will act with self control, tolerance, treating members of the public and colleagues with respect and courtesy. I will use my powers and authority, lawfully and proportionately, and will respect the rights of all individuals.” Amongst other things the Code states that officers should avoid any behaviour that might impair their effectiveness or damage, either their own reputation, or that of policing, and ensure that their behaviour and language could not reasonably be perceived to be abusive, oppressive, harassing, bullying, victimising, or offensive by the public or their policing colleagues.

[32]Chapter 3 provides that “I will act with fairness and impartiality. I will not discriminate unlawfully or unfairly.” The Code states that you must uphold the law regarding human rights and equality, treat all people fairly and with respect, and treat people impartially.

[33]Chapter 9 provides that “I will behave in a manner, whether on or off duty, which does not bring discredit on the police service or undermine public confidence in policing.”

[34]Before an applicant can join the Police they need to be vetted – this is known as Force Vetting. Different levels of vetting apply depending upon the role applied for. The Claimant applied to be a police constable and was therefore subject to Recruitment Vetting.

[35]Police forces in England and Wales are also required to comply with the Vetting Code published by the College of Policing in 2017. This document sets out the twelve principles which should underpin all vetting decision making. Principle 9 states that decisions about vetting status should follow the national decision model (NDM) and must be accurately recorded and that the rationale for any rejection should be communicated to the applicant in as much detail as possible. Principle 12 records that public confidence may be affected if an officer has a previous conviction or caution and there is a rebuttable presumption that someone will not be suitable for appointment especially if the offence related to dishonest or corrupt practice 10.5 Reserved judgment with reasons – rule 62 8 March 2017 or violence. Factors weighing against the presumption include the nature and severity of the offence, the applicant’s age at the time of the offence, and the time since the offence, however each case must be considered on its own merits.

[36]The NDM is set out at Chapter 6. Paragraph 6.2 requires that vetting decisions must be made on a case-by-case basis taking into consideration all relevant matters. The NDM is presented as a form of a circular flow diagram with the Code of Ethics Values and Professional Standards at the centre.

[37]Police forces in England and Wales are also required to apply the Authorised Professional Practice (“APP”) Vetting published by the College of Policing in 2019. This provides information on the vetting procedures to be applied by police forces in England and Wales. One of the stated purposes is to support the consistent application of vetting standards across the Police Service.

[38]It is clear from the APP that the assessment of risk is central to vetting. Those conducting vetting are expected to consider the risk to many aspects of policing including public safety, public confidence, corruption/coercion and integrity. Paragraph 3.2 provides that “The acceptance of any identified risk should lie with the department to which the individual is being recruited.” The Tribunal takes this to mean that different forces may make different vetting decisions depending upon their appetite for risk.

[39]The APP sets out the steps to be followed when conducting vetting and provides that “Where the applicant has declared matters such as convictions, criminal investigations, financial issues or previous jobs in the police service, forces should make an initial vetting assessment on receipt of the application to ascertain whether the application should be progressed” (paragraph 6.13.1).

[40]Those conducting vetting are required to take account of information provided by the applicant as well as other available sources including material on the Police National Database (“PND”), the Police National Computer (“PNC”) and also the Professional Standards Departments (“PSD”). (paragraph 7.24.6)

[41]The APP permits forces to withhold vetting clearance as soon as they have collated sufficient evidence to justify that decision (paragraph 7.1.2). If an appeal is made against the vetting decision, the force should complete any outstanding vetting enquiries before considering the appeal. However where it is evident from the outset that completing the outstanding enquiries will not add any value to the appeal, these do not need to be completed (paragraph 7.1.3).

[42]The APP states that there are various factors which require particular scrutiny and the presence of those factors in most cases would properly lead to a vetting rejection. The factors are set out at paragraph 7.27.1 and include:(i) significant or repeated breaches of discipline

(ii) abuse of position

(iii) previous breaches of the Code of Ethics 10.5 Reserved judgment with reasons – rule 62 9 March 2017

(iv) professional standards intelligence

(v) identified conflict of interest

(vi) other inappropriate behaviour which impinges on a person’s suitability to serve in the role.

[43]Paragraph 7.3.3 provides that offences motivated by hate or discrimination should also result in an application for vetting being refused. The reference to hate and discrimination demonstrates that these issues are intended to be taken seriously at the vetting stage.

[44]It is possible for a vetting interview to be conducted where vetting information raises questions or doubts about particular issues, however the APP notes that this is likely to be more common for management vetting. (MV) (paragraph 7.6.1).

[45]The Tribunal understands that the recruitment process follows a general pattern involving a test, an interview, vetting and other stages including a fitness assessment.

[46]As the three forces (Hertfordshire, Cambridgeshire and the Respondent) share the tri-service team responsible for vetting, it is clear that some of them would have been aware of the Claimant’s previous application and tribunal claim. This includes the Vetting Manager who will be referred to as “Mr H” as he was not called as a witness in this claim. We understand that Mr H was previously named for a time as a Respondent in the Claimant’s disability discrimination claim against Hertfordshire Constabulary.

[47]The Claimant completed an application form for employment with the Respondent in September 2019. The application asked whether candidates considered themselves to have a disability, to which the Claimant responded yes. When asked about reasonable adjustments that might be needed for the application or the recruitment process the Claimant stated: “I am disabled by reason of depression and anxiety, and the psychiatric medical assessment is that this can sometimes cause me to be rude or abrupt in my communications. I do my best to ensure that I do not let this occur, but should it be that in any of my communications I am thought to be less polite than is to be expected, this should be drawn to my attention and opportunity allowed for me to modify my approach.”

[48]Disability and knowledge of disability are not in dispute in this claim, however it is appropriate to note that the Respondent would have been on notice of the Claimant’s disability at least from the time of his application for employment.

[49]The Claimant disclosed six historic driving offences. By the time of his application the oldest conviction was 27 years earlier, and the most recent was over 15 years earlier. The Claimant also indicated that in 2008 he had been arrested and charged with criminal damage however the charge had been dropped by the CPS, and he said that the PND contained incorrect data that he had admitted the offence, and that the arresting force (ASC) had since apologised and paid him compensation about this.

[50]The Claimant also stated: 10.5 Reserved judgment with reasons – rule 62 10 March 2017 “As regards West Midlands Police and other information known to BCH Vetting from my 2017 application, and in particular the circumstances of my having left West Midlands Police, now some 21 years ago, BCH Vetting knows that the intelligence passed to it by Avon and Somerset Constabulary, created in 2005 was not accurate, as the original 1998 paperwork from West Midlands proves.”

[51]The Claimant said that there had been no similar allegations in any previous or subsequent role, and that this single unproven allegation was irrelevant to his application. The Claimant referred to two pieces of caselaw which he said showed that only allegations suggesting that an officer was dishonest or if he has convictions and disciplinary findings need to be disclosed.

[52]The Claimant was asked about previous employment and referred to five employers. With respect to one employer the Claimant said that he had left after whistleblowing and receiving a settlement agreement. With respect to another employer the Claimant said that he had discovered the employer was suppressing student plagiarism and he had reported the matter to a regulator and he then left with a settlement agreement.

[53]The Claimant referred to his 2016 application to Hertfordshire Police where his vetting was rejected in 2017. The Claimant also said that he was currently suing Hertfordshire Constabulary in the employment tribunal for disability discrimination. Accordingly, we also find that the Respondent was on notice that the Claimant had carried out a protected act (within the meaning of s. 27 Equality Act 2010) as it was clear from his application form.

[54]On 18 November 2019 the Claimant was informed that he had successfully passed the assessment and interview with the Respondent. The Claimant was advised that this was conditional upon a physical and medical assessment and successful vetting clearance.

[55]The Claimant completed a vetting form on 25 November 2019. Within the application the Claimant again set out the details of the six motoring offences and the 2008 arrest. The Claimant included some narrative on vetting policies and he again made reference to caselaw which he said meant that only convictions and disciplinary findings need to be disclosed but that mere allegations that do not result in a convictions or findings, did not. The Claimant said that driving offences did not suggest that he was dishonest.

[56]As regards associations, the Claimant referred to a relative from whom he had become estranged and that the relative had convictions for possession of a controlled substance and for threatening behaviour.

[57]When asked if there was anything else that the Claimant should bring to the attention of the Vetting Unit concerning his past, his integrity or his associations, the Claimant referred to a comment he made about Muslims in 1998 following a training session on Islamic terrorism when he was a serving police officer. In these proceedings the Claimant has confirmed that the comment he made was “Bastard Muslims” although the Respondent’s records state that the words used were “I hate Muslims, they’re all bastards.” The Claimant vehemently denies using the latter phrase. The Claimant has 10.5 Reserved judgment with reasons – rule 62 11 March 2017 confirmed in these proceedings that he did not attribute the comments he admits he made (“Bastard Muslims”) to his disability. The Claimant also referred to having sued ASC for defamation for supplying inaccurate statements about the incident. The Claimant said that claim was settled.

[58]The Claimant stated that the 1998 complaint did not negatively affect his suitability to be a police officer as it had first taught him to be alert to the sensitivities of others and alert to his surroundings, which he said was a positive effect. The Claimant also referenced caselaw and stated that as the allegations had not resulted in a finding they were not disclosable in a criminal case. The Claimant also made reference to the APP Vetting and the Code of Practice in support of his view. In addition the Claimant stated that he was also suing ASC regarding inaccurate data held about him.

[59]It is clear therefore that anyone reading the vetting application form would have been made aware that the Claimant had been engaged in various forms of litigation with Police forces. Vetting decision

[60]The initial vetting was conducted by Mr Lamb as vetting officer. The Vetting Unit is part of the Professional Standards Department. The Tribunal has been referred to the vetting decision making rationale prepared by Mr Lamb. This is a long and thorough document which lists the information which he was presented with, both from the Claimant in his vetting form and also the other sources to which he had access including the PND and open sources (eg Facebook and Google and other such sources).

[61]We understand that Mr Lamb only had the Claimant’s vetting application before him rather than the whole application. However, Mr Lamb referred to a letter from legal services to the Claimant dated 2018 which made reference to the employment tribunal claim of disability discrimination against Hertfordshire Constabulary. Accordingly, we find that Mr Lamb was aware that the Claimant had carried out a protected act at the time of making his vetting decision. Mr Lamb also noted that the Claimant had also brought legal proceedings for judicial review [bundle page 152] as well as misfeasance in a public office [bundle page 156].

[62]An analysis of Mr Lamb’s decision-making rationale shows that all of the material from the Claimant’s application and Mr Lamb’s searches were taken into consideration, however differing levels of weight were attached to them in his decision making.

[63]We find that Mr Lamb placed a low level of weight upon the Claimant’s historic driving offences, the 2008 arrest and charge of criminal damage which was later withdrawn, and an allegation that the Claimant had been admonished for taking part in a strip tease whilst serving at WMP. The Claimant’s version was that others had been given permission to perform whereas he was egged on and had only removed his shirt, and that he was aged 23 at the time. We find Mr Lamb placed low weight on another allegation that the Claimant had exposed himself at a police event. Mr Lamb recorded the Claimant’s version of events that it had been someone else who had unzipped their trousers and their penis had fallen out. Mr Lamb noted that there was hearsay evidence on file that it had been someone 10.5 Reserved judgment with reasons – rule 62 12 March 2017 else and not the Claimant and he stated, “I believe it strengthens the premise that no separate matter of exposure occurred relating directly to the applicant himself.” With respect to each of these matters Mr Lamb recorded that “this information will only assist an overall assessment of the application.”

[64]Mr Lamb also recorded that a former colleague at ASC had alleged that the Claimant had shared a newspaper article about him appearing in pornography, had left photographs on a colleague’s desk, and had also worn an inappropriate t-shirt at work on his last day which made reference to 9.5 inches. It was recorded that all of these were denied by the Claimant, however Mr Lamb noted that the ASC had removed the data from their files, but he said that it was hard to believe that a member of police staff would fabricate this in its entirety given that the applicant had already left ASC. Mr Lamb recorded that as no investigation appeared to be recorded it would only be considered as part of the vetting assessment as a whole with a view to identifying possible patterns of behaviour. The Tribunal finds that Mr Lamb did not place a high level of weight on this matter but neither did he disregard it. We instead find that Mr Lamb kept an open mind on this issue. We also find that Mr Lamb placed medium weight on the Claimant’s association with an estranged relative with a criminal record.

[65]Mr Lamb also referred to an allegation of racially discriminatory behaviour by the Claimant whilst at WMP in 1998. The records showed different versions of the words used by the Claimant. The Claimant said he had only used the words “Bastard Muslims”, whereas part of the police records suggested he had said “I hate Muslims, they’re all bastards”. The Claimant had said that the latter wording was a gross exaggeration. It was noted by Mr Lamb that the Claimant had said that he deeply regretted his insensitivity and that it was not a display of racial or religious prejudice, and that he did not hold racial or religious views now nor back then.

[66]It is not necessary for this Tribunal to decide which version of words was used, save to note that it was taken into account by Mr Lamb who noted that the Claimant’s explanation seemed to convey genuine remorse in relation to the incident and any offence it may have caused. However, he also noted that as the Claimant had resigned his position prior to completion of the complaint, this had left the matters untested. Mr Lamb said that whilst the matter occurred in 1998, “due to the seriousness of the allegation, this must form part of my overall consideration in relation to vetting clearance.” The Tribunal finds that this term was used to demonstrate a high level of weight attached to this factor. This coincides with paragraph 7.3.3 of the APP which provides that offences motivated by hate or discrimination should also result in an application for vetting being refused. That is not to suggest that the Claimant had committed an offence, but rather some support for the high level of weight attached to this factor can be found within the APP and also the Ethics Code generally but in particular Chapters 3 and 9.

[67]As regards open source and published material, Mr Lamb made references to searches on Google which returned a Twitter account which contained mildly inappropriate posts, the majority of which related to politics and also derogatory posts relating to politicians and public officials. No level of weight appears to have been placed upon these. 10.5 Reserved judgment with reasons – rule 62 13 March 2017

[68]We find that Mr Lamb placed a high level of weight on the Claimant’s published works on matters of law, as he identified 18 of the Claimant’s publications but one particular paper was singled out - “Drawing the Thin Blue Line: The Reality of Who Controls the Police – The Police Journal 2004.” Mr Lamb said that this gave rise to some concern as the paper appeared to provide a perspective on police accountability and suggested that corrupt practice may be commonplace within the police service. There was also a reference to an ‘inbred’ culture which Mr Lamb made reference to. Mr Lamb pasted various extracts from the paper but noted that most were quotations from other authors but he said it could be argued that they were used in order to construct and present a view held by the Claimant.

[69]We find that the main concern appeared to be not the Claimant had published material, but that when connected to a police officer it could undermine public confidence in policing, or that it was possible that an opposing barrister in a criminal trial could use the applicant’ publications against him in order to undermine him in the evidential chain. Mr Lamb said “This must form part of my overall consideration in relation to vetting clearance. If the applicant is to be taken forward, his connection to these works should be confirmed and considered further.” We find that Mr Lamb placed a high level of weight on this factor. We find that this was consistent with one of the aims of the APP which requires vetting decisions to take into account risks to public confidence [bundle page 329].

[70]Under a separate heading of “Employment History / Litigation” Mr Lamb referenced that the Claimant had left separate employment positions in 2013, 2015 and 2016, due to disagreements with management and colleagues and received settlement agreements from those employers. Mr Lamb referenced the Claimant being in the process of employment tribunal proceedings against Hertfordshire Constabulary, and that he had brought claims for misfeasance in a public office, and it was believed that he had been in litigation with ASC, WMP and Northamptonshire Police. We understand that the Claimant disputes some of the references.

[71]Mr Lamb said that whilst the Claimant had provided an explanation in relation to his employment history, it was clear that an observable pattern of behaviour existed. Mr Lamb use the phrase “This must form part of my overall consideration in relation to vetting clearance. If the applicant is to be taken forward, it may further our understanding, by querying with him, how many legal actions he has taken against other entities, such as private individuals, employees, and public authorities, including police forces, and the basis for them” [bundle page 156]. Given the language used by Mr Lamb, the tribunal finds that he attached a high level of weight to this factor.

[72]However, we do not find that this comment of itself demonstrates that it was the claim against Hertfordshire which was a significant factor, and this is because of the language used. Firstly the use of the words “If the application is to be taken forward…” would suggest that it was not intended that these legal actions alone were being used as a basis for rejecting him, and secondly the sentence goes on to state “it may further our understanding...” which we find is indicative of an open mind, rather one determined to reject the Claimant for having brought a disability discrimination claim. Essentially we find that what Mr Lamb meant was that 10.5 Reserved judgment with reasons – rule 62 14 March 2017 if the Claimant is appointed it would be necessary to find out who he is in a legal dispute with. We find that it was the fact of being frequently in dispute with people which attracted a high level of weight rather than a particular legal dispute or claim.

[73]Mr Lamb set out a separate heading entitled “Interactions with BCH during the recruitment and vetting process.” Mr Lamb noted that the Claimant had appealed a previous rejection vetting clearance in 2017, and that an appeal rationale was compiled by Mr H as Vetting Manager. This detailed interactions between the Claimant and individuals within the organisation such as HR and PSD who would have been potential work colleagues of the Claimant had he been appointed. Mr Lamb noted that these interactions appeared to fall below the expected standard of behaviour required of a prospective police officer and required by the Code of Ethics. Mr Lamb also said that it may also be considered that the Claimant’s approach was not in keeping with the general pleasantries an employer might expect from a potential employee, and that the Claimant had also pursued lengthy complaints against a multitude of staff members through both internal processes and the IOPC. Mr Lamb referred to one statement from the Claimant where he said he would not rest until Mr H had been sacked, and that this could be considered vindictive. This appears to be a comment made on 5 May 2018 which is set out in more detail below.

[74]Mr Lamb referred to various extracts within that 2017 appeal rationale of Mr H. It would not be proportionate for the Tribunal to list all those interactions in this judgment as it extends to just over six pages of very detailed material. Many of the comments identified referred to then previous vetting supervisor in 2017 whom he will refer to as “Ms B” as she has not appeared as a witness in this claim. Many, but not all of the interactions occurred on 23 June 2017 and 10 July 2017.

[75]We find that much of the Claimant’s correspondence identified by Mr Lamb, was rude, offensive and derogatory with respect to staff in vetting and Human Resources. The Claimant made repeated comments about individuals’ competence, and referred to Ms B as “too stupid to understand the finer points.” The Claimant alleged that staff had been determined to reject his application and that a “caldron of lies had been cooked up to reject him.” The Claimant questioned Ms B’s integrity and said that she was “clearly unfit to be entrusted with vetting.” We also note that the Claimant stated that he would not rest until Mr H had been sacked.

[76]Mr Lamb noted the comments of Mr H in the 2017 appeal rationale where he stated that the Claimant’s character “appears to get into conflict very easily and can come across as rude, disrespectful and offensive….” Mr H went on to state “he falls out with people and organisations very easily. It appears, or at least on a greater than average person would; I am particularly concerned about the way he describes his potential work colleagues, if he has these feelings now towards he [sic] potential employer and work colleagues, then what will he be like when he becomes a work, colleague; I conclude that he will not demonstrate the quality is needed as described in the Code of Ethics towards work colleagues and the public.”

[77]The tribunal notes that Mr Lamb went to lengths to take into consideration the Claimant’s perspective, and that the Claimant had been asked some 10.5 Reserved judgment with reasons – rule 62 15 March 2017 uncomfortable allegations arising from historic matters of conduct, which had appeared to cause him some anger and feeling that his character been called into question. We also felt that Mr Lamb gave the Claimant some credit as he noted that whilst it did not provide an excuse for the Claimant’s approach, he said that it may be considered that he felt he was providing a vigorous defence. We felt that this was a genuine attempt by Mr Lamb to approach the communications from the Claimant’s point of view.

[78]Other enquiries were referred to including those with Human Resources and PSD who had made references to the Claimant’s rudeness and referred to him as nasty and abusing, and showing contempt.

[79]We note that Mr Lamb also referred to various correspondence between the Claimant and other staff which appeared to relate to a subject access request(s) he had made, and complaints he intended to make to the Information Commissioner. There were references to various pieces of correspondence from the Claimant to the PSD in 2018 and 2019. Again it would be disproportionate to list all of the correspondence but the Tribunal notes that the Claimant maintained his criticisms of Ms B and Mr H (and others) and he passed comment about their intelligence and competence. The Claimant referred to expecting some individuals to be sacked and even prosecuted and made general criticisms of the Police in general, in particular that they had “a long history of this kind of surreptitious behaviour.” In another comment on 10 October 2018 the Claimant said “..it is surely rare for the unintelligent to rise as high as NPCC level…”.

[80]In one quote the Claimant had said that from the news he could see that Cambridgeshire and Hertfordshire were then in the top three forces by number of staff whose vetting had expired. On 19 February 2019 the Claimant stated “How embarrassing, but wholly predictable given the extremely low integrity and competence of BCH Vetting staff, whose supervision and management are a joke, and a corrupt one at that, as, Mrs [redacted], you can be sure that I will be fully ventilating in court. Let’s see what that does for public confidence’ [bundle page 159]. The Tribunal felt that this comment went beyond frustration or anger about his own vetting decision from 2017.

[81]We found one specific comment noted by Mr Lamb in the vetting rationale to be of particular relevance to the question of whether to appoint the Claimant. This was a note from a Detective Inspector dated 8 December 2018 [bundle page 161] which recorded concerns that if the Claimant behaved in this way to people within the organisation, the author queried how would he behave towards members of the public to whom he would come into contact with. The individual had said that the trust and confidence of the public was vital in order for the police to perform their role effectively, and it would be negligent not to flag such concerns. We found this to be an important piece of evidence as it went beyond simply the interactions between the Claimant and the Respondent and raised an important question of what would the impact be on the public if the Claimant was appointed and behaved in a similar way.

[82]We note that when trying to obtain third party data from the Respondent the Claimant was alleged to have sent an email on 6 September 2017 in which he told staff to stop messing him around, he was a lawyer and knew what 10.5 Reserved judgment with reasons – rule 62 16 March 2017 he was talking about and that he would add a 20th complaint to go to the Information Commissioner’s Office (“ICO”) in which he would complain of dishonesty or gross incompetence [bundle page 162].

[83]Within the decision making rationale we note that Mr Lamb pasted an email dated 5 May 2008 (referred to earlier) from the Claimant to the Respondent in which he said “do not think matters are over” and that he intended to renew all of his complaints to the ICO and “…I will have you people held to account for your incompetencies and corruptions – most of all you Mr H [redacted]. I will not rest until you are sacked.” [bundle page 158].

[84]We also note that there is separate reference to a long email on the same date from the Claimant which contains a considerable amount of criticism of the Respondent’s staff with allegations that their behaviour was illegal, immoral, unfair and that the Respondent was a law unto itself. The Claimant had added that he was not a “nutter”, that he was highly educated and that he would not walk away. During the course of his evidence before this Tribunal the Claimant conceded that his choice of phrase had been unhelpful and could create a negative impression. We note from Mr Lamb’s vetting rationale that on one occasion the head of HR had to ask the Claimant to tone down his approach to staff.

[85]The tribunal has reviewed Mr Lamb’s concluding comments about the Claimant’s application under the heading of “treatment of work colleagues / behaviour and conflict / employment history.” This appears to be a very balanced and fair summary of the material before Mr Lamb. Mr Lamb summarised that the Claimant was an intelligent and qualified individual but at times he had not displayed general courtesy and politeness, behaving in a manner not in keeping with the Police Code of Ethics. Mr Lamb referenced the personal nature of the Claimant’s complaints to the PSD, and some offensive comments being made to the vetting unit members of staff in writing. He observed that the Claimant appeared to be combative in his approach to problem solving and sometimes making derogatory comments about others to reinforce a view.

[86]Mr Lamb noted that the Claimant had also made lengthy complaints about approximately 18 separate members of staff spanning several departments pursued internally and externally to the Independent Office for Police Conduct (“IOPC”). Whilst noting that it was the Claimant’s right to make complaints in order to challenge perceived inappropriate conduct, we note that Mr Lamb found this to be “an extraordinary level of grievance constituting an observable pattern of behaviour which likely placed a considerable burden on police resources”.

[87]The tribunal noted Mr Lamb went on to state “The applicant’s employment history is also an area of concern, having received settlement agreements from his last three employers and bringing employment tribunal proceedings against Hertfordshire Police in relation to a previous decision. It is also believed that the applicant is or has been in dispute with Avon & Somerset, West Midlands and Northamptonshire Police.” We have carefully considered this sentence. We do not find that Mr Lamb was taking issue with the Claimant having carried out a protected act (the discrimination claim against Hertfordshire) but rather we find that he was expressing concern that the Claimant appeared to be regularly in conflict with his 10.5 Reserved judgment with reasons – rule 62 17 March 2017 employers and that it ended up in litigation. We should note that it was the fact of getting into a frequent dispute and his approach to such disputes which appeared to have caused concern to Mr Lamb.

[88]Mr Lamb’s additional comments support this conclusion as he said that he was concerned that the Claimant adopted an adversarial approach which generated conflict with people he came into contact with which might be unintentional, but a police officer should be adept at resolving potential conflict by seeking out common ground in a non-confrontational way. Mr Lamb noted that the role applied for would place the Claimant daily into volatile and emotionally charged situations requiring a sensitive and balanced approach. Mr Lamb concluded that on this basis, and in conjunction with other risks identified within the rationale, the Claimant could not be considered suitable for the role applied for at that time.

[89]This vetting decision was then subject to an internal review by Mr H the vetting manager. Normally this task would fall to one of the two vetting supervisors however Mr H said that the Claimant had caused significant health problems for the one who had been involved in his 2017 application and the other had recently had significant welfare challenges, so it was felt that dealing with the Claimant’s application would be an unfair burden on them.

[90]We do not intend to repeat all of the observations from Mr H as much of it concurs with Mr Lamb’s findings. We will confine our findings to general observations and in particular on those areas where Mr H either differed or went further than Mr Lamb. We find that over the course of his three page summary Mr H provided a fair assessment of Mr Lamb’s vetting rationale.

[91]Mr H concluded that if the Claimant takes offensive and confrontational approach with potential work colleagues, then he assumed he would take similar approaches with members of the public who would be much more challenging to him and which would then “trigger his offensive, derogatory and confrontational personality.”

[92]We also note Mr H’s comments about the Claimant that “He is unlikely to have the right level of patience, tolerance, team-spirit and understanding needed to work with colleagues or to serve the public with open– mindedness, empathy, care and professionalism. His aggressive and challenging style will not earn him the necessary cooperation of colleagues and members of the public.” Mr H referenced the considerable resources which he said the Claimant knew would have been taken up with dealing with him and he asserted that “I think the majority of reasonable people would be extremely surprised that he wishes to work for BCH and may conclude that that is not his intent.” Mr H agreed with Mr Lamb that the Claimant had not passed the vetting process.

[93]On 27 February 2020 Mr Lamb informed the Claimant that he would not be granted vetting clearance and that his application would not be considered further. Mr Lamb indicated that the refusal was not simply on the basis of the refusal in 2017, but he had considered the matter afresh and had applied less weight to some issues which had become more clear since then. Seven factors were identified as follows: 10.5 Reserved judgment with reasons – rule 62 18 March 2017

(i) The Claimant’s conduct during interactions with BCH personnel and potential work colleagues which fell well short of the standards expected of someone wishing to become a police officer

(ii) The use of derogatory language, and of an offensive nature in the conduct of his many complaints, various attempts of litigation and pending employment tribunal, which was not in keeping with the police Ethics Code and the general pleasantries an employer and existing employees may expect from a potential employee. Mr Lamb said he did not suggest the Claimant was not entitled to make complaints, nor attempt litigation, but it was the manner and derogatory tone used during those processes which raised concern.

(iii) The Claimant’s publications had the potential to cause a conflict of interest if he was a police officer, and they could be used to undermine him or to undermine public confidence, or even attempt to corrupt him as a police officer by criminals.

(iv) The complaint about alleged racially discriminatory behaviour in 1998, and the Claimant having resigned from his role as police officer during the ongoing investigation so that the relevant matters remained untested.

(v) The Claimant was the subject of three further allegations of inappropriate behaviour whilst employed by WMP and ASC. Mr Lamb said he had attached little weight to two of those allegations concerning the Full Monty or strip tease and the allegation of exposure, however, he gave greater weight to the allegation involving inappropriate conduct on his last day at ASC although Mr Lamb noted the Claimant suggested it may have been a fabrication by serving police personnel at the time.

(vi) The 2008 matter relating to a motor vehicle which Mr Lamb said he attached little weight to.

(vii) The Claimant’s disqualification from driving following a 2001 conviction which occurred after the Claimant had received probationary training from WMP. We understand from the Claimant’s evidence that the 2001 disqualification was not due to a specific offence but was due to previous offences having been totaled up, thus resulting in that penalty.

[94]The Claimant was told that his application had been stopped, although this decision was not necessarily indefinite as a different view may be taken in the future. The tribunal understands that this is a stock phrase used in almost every refusal, and it does not necessarily mean that a future application would be successful.

[95]Whereas the Claimant argues that irrelevant matters were taken into account, the Tribunal must exercise caution here. It is not for the Tribunal to determine what is relevant – that is a matter for the Police vetting officers who are the experts in this field and who have been given the task of assessing risk. It would be wrong for the Tribunal to make a decision on what is relevant for them to consider. Our task is to determine the issues in this case, and as the Claimant has clarified, whether other issues were 10.5 Reserved judgment with reasons – rule 62 19 March 2017 relied upon in order to pad out a decision to refuse him vetting with the true reason being because he had carried out a protected act.

[96]Having heard the evidence of Mr Lamb at the hearing the Tribunal finds that his evidence was consistent with the contemporary documents. We paid close attention to Mr Lamb’s references to the Claimant having brought previous litigation (including the discrimination claim). We note that Mr Lamb had suggested that the Claimant had acted inappropriately in the conduct of that litigation, an allegation which the Claimant vehemently denies and he argues that Mr Lamb did not know the detail of the claim so it could only be the bringing of the claim which had influenced him.

[97]We find that the language used by Mr Lamb in the outcome letter did not adequately reflect the vetting rationale he produced which was reviewed and approved by Mr H. A reading of the outcome letter could lead to the interpretation that the Claimant has been accused of sending inappropriate correspondence in the conduct of his employment tribunal claim against Hertfordshire Constabulary as Mr Lamb’s evidence was that he had “sampled correspondence” to the Tribunal. If that was what was being alleged by Mr Lamb, then it is not material which was placed before this tribunal. However, we did not consider that is what was in fact alleged.

[98]The allegation, as is clear from the vetting rationale [bundle page 164], and the commentary from Mr H, is that the Claimant had made lengthy complaints against 18 staff, pursued internally and externally, and whilst noting it was his right to pursue grievances, it appeared to Mr Lamb to be an extraordinary level of grievance which constituted an observable pattern of behaviour. The employment tribunal claim against Hertfordshire is referred to in passing, however Mr Lamb also refers to the Claimant being in dispute with ASC and WMP as well. The material before Mr Lamb included references to judicial review, defamation, a potential claim for a data breach, and also misfeasance in a public office which we understand were brought against those forces.

[99]We should note that we have seen various notes within the rationale where the Respondent’s staff have commented not just on what the Claimant had said or done, but how it made them feel about him, including he was the most rude person they had met, and we note that Ms B was removed from dealing with him after he had caused her stress. We do not consider that Mr Lamb was indicating that it was the employment tribunal claim (or the conduct of it) which was the problem, rather it was the Claimant’s frequent disputes with employers (or the Respondent as a potential future employer) and the derogatory and offensive language he used, which was a genuine concern to Mr Lamb. We find that this is borne out in a subsequent paragraph in the rationale [bundle page 164] where Mr Lamb said that he was concerned that the Claimant regularly adopted an adversarial approach which generated conflict with people he came into contact with, and whilst it may be wholly unintentional a police officer should be adept at resolving potential conflict by seeking out common ground in a non-confrontational way.

[100]Nevertheless we accept that the language used in the vetting outcome letter of 27 February 2020 was unclear as to the significance of the employment tribunal litigation in the decision making, and inevitably would 10.5 Reserved judgment with reasons – rule 62 20 March 2017 lead the Claimant to question the reasoning. However, when the outcome letter is read alongside the vetting rationale, the latter makes it clear that it was the frequent disputes and the derogatory and offensive language used which was the issue, rather than a specific piece of the Claimant’s litigation. We have considered whether this reasoning was genuine on the part of Mr Lamb or whether it was included to disguise an attempt to exclude the Claimant for having brought a previous discrimination claim. We do not find that it was.

[101]The Tribunal recognises why the Claimant has challenged the reference to his previous claim in that decision outcome letter, however we find that it was inevitable when conducting a vetting exercise of this nature that Mr Lamb would have recorded it as he was required to under the Vetting Code and the NDM, and Mr Lamb appears to have recorded everything that he was presented with and took into consideration, including historic matters from 27 years earlier. We would point out that much of this information had been provided by the Claimant who had referenced his various pieces of litigation, as such it was inevitable that some reference would need to be made to them. We therefore find that the previous employment tribunal claim had only a trivial significance in the decision.

[102]We have noted the reference to the 1998 remark which the Claimant admits he made. It is not for this Tribunal to decide whether that issue should have been taken into account – the fact is that Mr Lamb did so and we accept his reasons for doing so, and we note that Mr H went further and referenced the work done by the Police to tackle racism (or institutional racism) and he asked what message it would send to diverse communities if allegations were disregarded because they were historic. We found that Mr Lamb and Mr H found it an aggravating feature that the Claimant was a serving police officer at the time. We find that Mr Lamb’s reliance upon this was genuine. We do not believe that it was relied upon to pad out a decision to victimise the Claimant. We also consider that the Police Code of Ethics (chapters 2, 3, and 9) required Mr Lamb to have taken into consideration the Claimant’s 1998 comment and also his communications with the Respondent’s staff given that upon appointment the Claimant would have been subject to that Code.

[103]We have also considered the reference to the Claimant being a lecturer in law and his publications, and the risk of a conflict of interest or the potential to undermine the Claimant or to corrupt him. We will start by addressing the reference to criminals attempting to corrupt the Claimant. We find that the reference to corruption contained insufficient explanation and would have caused someone in the Claimant’s position to have queried such a reason. The reference to corruption did not appear in Mr Lamb’s initial summary in the vetting rationale document, it appears to have been first referenced by Mr H when reviewing Mr Lamb’s rationale, and then adopted by Mr Lamb in his outcome letter to the Claimant. It was not explained to the Claimant specifically at the time by Mr Lamb what this meant, however having heard and read Mr Jeram’s evidence we understand that it was not being alleged that the Claimant was corruptible, but rather his publications may have been used by criminals to seek to corrupt him and that it was just observed as a possible area of consideration. Whilst we find that this was a genuine concern, we felt that the Respondent offered the Claimant very little by way of explanation as to why. 10.5 Reserved judgment with reasons – rule 62 21 March 2017

[104]As regards the Claimant’s publications leading to a potential conflict of interest, we find that the publication which seemed to cause the most concern was the Thin Blue Line which discusses Police corruption. Mr Lamb had said that this might be used against the Claimant in future by an opposing barrister in a criminal trial in order to try and discredit his evidence, or that future publications of that nature by a serving police officer might damage public confidence in policing. These appeared to us, having read and heard all of the evidence, to be genuine concerns on the part of Mr Lamb (and also Mr H and Mr Jeram). We understood Mr Lamb to be making a realistic argument that there was nothing wrong in someone publishing papers like that, however it had to be appreciated that in a criminal trial the defence may seek to discredit a police officer who has published material on Police corruption. Whether that could successfully tip the balance in a criminal trial is not for us to decide, nevertheless we find that Mr Lamb was genuinely concerned that it could happen.

[105]As regards the references to historic driving convictions, the alleged inappropriate behaviour on his last day of work at ASC and the alleged Full Monty and exposure incidents, we find that less weight was attached to them but they were included to show what had been considered and that some weight had been placed upon them. We do not consider that they were used to pad out the reasoning but at the same time we do not think that Mr Lamb would have refused vetting for those reasons alone - rather it was the Claimant’s correspondence, his ability to get on with employers and concerns how we would behave when challenged by the public, the 1998 comment, and the risk of the Claimant being undermined in a criminal trial which were the main reasons why his vetting was refused by Mr Lamb. Vetting appeal

[106]The Claimant submitted a 19 page appeal on 14 March 2020. Following the results of a subject access request which included release of the vetting rationale, the Claimant updated this appeal on 16 April 2020 where he added a further 15 pages. We do not intend to repeat the contents of the Claimant’s appeal save to note that the Claimant made repeated criticisms of Mr Lamb and Mr H including their competence, intelligence and motivations. The Clamant used words such as dishonest, disingenuous, and ignorance. We note that this was written in April 2020 some three years after the Claimant made similar comments about other vetting staff in 2017. The Tribunal noted the Claimant’s continued reliance on making derogatory comments about people who disagree with him.

[107]Despite having concerns about his conduct raised within the vetting outcome the Claimant responded: “However, I deny that I was rude and offensive. I responded to the incompetence and unlawful behaviour in a justifiably robust manner.” The Claimant went on to allege that someone involved in his subject access request had lied to him – within paragraph 95 of his appeal the word lies and lied are used numerous times in respect of one individual whom the Claimant noted had not been disciplined. Later at paragraph 101 the Claimant stated “I said nothing to ashamed of. If she had dealt with me in an honest and competent way then I would not have had to take the robust line I did.” With respect to Ms B’s comments that she felt under pressure from the Claimant he stated “That she should interpret this 10.5 Reserved judgment with reasons – rule 62 22 March 2017 as pressure says far more about her than me, and if she can’t handle what was only a simple question then should she even be working in that department?”

[108]We note that the Claimant attributed his earlier language from 2017 and later, to his disability. We accept, given the contents of Dr Grewal’s report, that this was likely a consequence of the Claimant’s disability and that it would be difficult for him to control, however we also find that the contents of the appeal lends support to the Respondent’s arguments in this litigation that that when challenged or when he did not get his own way, the Claimant would revert to this sort of behaviour where he would make derogatory and offensive remarks about people about their intelligence or their integrity. We find that the Claimant’s conduct had not changed a great deal since 2017.

[109]The Claimant has argued in these proceedings that the Respondent should have provided him with guidance on managing his communications as a reasonable adjustment. We note that Mr Lamb had brought to the Claimant’s attention in the outcome letter that he conducted himself in an offensive and a derogatory way, however the Claimant’s response was to make further criticisms of Ms B and Mr H and to do the same to Mr Lamb who had brought the matter to his attention. It appeared to the Tribunal that having raised these concerns with the Claimant it did not seem to have any effect on him, it simply resulted in further criticism of the Respondent and its staff. We find therefore that further guidance would not have assisted.

[110]The Claimant’s appeal was considered by Mr Jeram (vetting appeal decision maker) who we heard evidence from. We note that Mr Jeram maintained the decision of Mr Lamb however his reasoning differed slightly as he disregarded the driving convictions and the criminal damage charge. The strip tease or exposure matter were also disregarded. We note that Mr Jeram still took into account the allegation about the inappropriate t-shirt as he could not see why someone would make up the allegation, however he confirmed he would not rejected the Claimant on that allegation alone. The Claimant’s association with a relative with a criminal past was not totally discounted but only low weight was attached to it.

[111]It was clear to the Tribunal that the “Bastard Muslims” comment from 1998 remained of significant concern to Mr Jeram as he said it was the PSD information he had most concern about. Whilst noting its age and the Claimant’s admission that it was inappropriate and he likely regretted it, we noted that Mr Jeram was genuinely concerned whether the Claimant would act impartially in a role as a police officer having previously made this comment. Significant weight was placed on the fact that the comment had been made whilst the Claimant was working as a police officer when he would have known this was not acceptable, and that an officer could be dismissed for making such a comment.

[112]As regards the Claimant’s published material, we note that Mr Jeram found this to be a difficult matter to consider as he recognised the Claimant’s right to publish this material and he went as far as to acknowledge that it may even be a great addition to the force to have someone with so much working knowledge of the law. Mr Jeram noted the Claimant’s objections to the suggestions that it could undermine public confidence or lead to 10.5 Reserved judgment with reasons – rule 62 23 March 2017 attempts to corrupt him, Mr Jeram said that it was no more than an area of possible consideration and not a suggestion that it would happen.

[113]We find that Mr Jeram’s main concern in this area (which he said he could not ignore) was the Thin Blue Line article referred to above. Mr Jeram said that the Claimant appeared to almost question if officers are held accountable for their actions, possibly alluding to corrupt practice, and that he appeared to have issue with how decisions are sometimes made in policing and questioning the accountability of them. We consider that Mr Jeram was genuinely concerned about potential for conflict from other officers on the basis of what the Claimant had written.

[114]We have carefully considered Mr Jeram’s comments about the Claimant’s ongoing legal matters and his litigation history with other employers. We accept that Mr Jeram found this to be a unique situation and also that he felt that he would need to reference it in the vetting decision. We note that Mr Jeram acknowledged that it was the Claimant’s right to pursue litigation and that Mr Jeram found that it was not the usual behaviour he would expect of someone keen to work for that employer.

[115]We note that the Claimant’s protected act relied upon in this claim (the disability discrimination claim against Hertfordshire Constabulary) was not referenced by name but was referred to as “ongoing proceedings against a police force.” However we do not find that Mr Jeram was taking issue with the fact that the Claimant had brought that claim, or any specific claim, rather it was the fact that in his view the Claimant appeared to have been in conflict with every employer he had worked with. Specifically Mr Jeram said “I also find it unusual that the applicant seems to have been in some sort of conflict with all his previous employers due to disagreements with management and colleagues, resulting in him receiving settlement agreements from each employer. This comes across to me that the applicant can take things extremely personally and if he disagrees with something / a outcome then he won’t be happy until he gets his own way” [bundle page 299].

[116]Mr Jeram said that this also linked with what he described as his main concerns which are dealt with below. It was therefore clear to us that it was not the act of bringing the disability discrimination claim which was of concern to Mr Jeram, it was the fact that it appeared to him that the Claimant was not able to get on with any of his employers which was the issue. We find the following comments of Mr Jeram within the appeal rationale to be particularly relevant: “…Whilst I agree, that an individual has the right to take any action they wish/make complaints and that this should not be held against him, it is more about the way he has done this/the comments he has made within these complaints and how it links in to his general behaviour/interactions he has had with a number of individuals…”

[117]Mr Jeram said that the main area of concern for him, and the reason why he could not justify granting clearance to the Claimant, was his serious concerns around how the Claimant would interact with colleagues and members of the public based on the way he had interacted with members of the constabulary who would have become his colleagues. 10.5 Reserved judgment with reasons – rule 62 24 March 2017

[118]Mr Jeram said that the only example he had of the Claimant acknowledging his rude behaviour was in February 2018 when he said that he probably shouldn’t have suggested that the vetting supervisor was of ‘mediocre intelligence’, however just a few months later in May 2018 the Claimant then described a different member of the organisation as someone that ‘is either utterly unscrupulous or outstandingly dim.’ Mr Jeram said that this shows he did not learn from what he had said previously at all.

[119]We also note that Mr Jeram relied upon the Claimant’s threats to staff, by way of example the comment to Mr H that ‘I will have you people held to account for your incompetencies and corruptions – most of all you Mr H [redacted]. I will not rest until you are sacked.’ Mr Jeram said that whilst not a physical threat it was still a threat that was completely unprofessional and inappropriate. Mr Jeram also appeared to agree with the comments of a previous trainer who had stated “I was concerned by this behaviour as Mr Warburton was applying to become a regular police officera position in which he would have certain powers and responsibilities over that of a member of the public- and as such, a position that is held to a higher level of scrutiny. His attitude at this stage suggested to me a lack of respect and lack of attempting to understand why things were done.”

[120]Mr Jeram also noted that the Claimant had also questioned someone in a very senior role (a Detective Chief Constable) who had reviewed an earlier vetting decision and accused her of not actually reviewing it and endorsing an illegal decision and accusing her of not conducting any due diligence. We note Mr Jeram posed the question “How could we then expect this applicant to go and work under the guidance/direction of a senior officer if this is his attitude towards decisions they are making if he doesn’t agree with it?”

[121]We note that Mr Jeram recorded his concerns that there was a risk that the Claimant would breach various standards of professional behaviour within the Code of Ethics. Mr Jeram said he feared the Claimant would not be able to manage challenging situations and individuals who may become abusive to him in some way, and in turn breaching the standards of professional behaviour to deal with them, thus leading to questions about the type of individuals the police employ with possible reputational damage caused.

[122]We have also noted that Mr Jeram specifically referred to section 7.27 of the APP relating to ‘Factors requiring particular scrutiny’ which would probably lead to a vetting rejection and these included(i) significant or repeated breaches of discipline;

(ii) breaches of the Code of Ethics; and

(iii) other inappropriate behaviour which impinges on a person’s suitability to serve in the role. It was clear to the Tribunal that Mr Jeram was genuinely concerned about the Claimant’s “Bastard Muslims” comment and his offensive and derogatory correspondence.

[123]The Tribunal notes that Mr Jeram took into account that some of the Claimant’s behaviour might have been influenced by his diagnosis of depression and anxiety which affected his communication with others. However Mr Jeram said that this was not a reasonable excuse as he had not acknowledged that this was wrong or offered an apology and that there 10.5 Reserved judgment with reasons – rule 62 25 March 2017 were suggestions that he had displayed rude behaviour in the past before this period where he states he was unemployed and depressed. Mr Jeram then suggested that other rejected applicants had been unemployed and perhaps suffering from their own difficulties but had not corresponded like this and had remained professional at all times. We find that this reasoning did not fully take into account the effects of the Claimant’s disability.

[124]In his witness statement Mr Jeram said that whilst the Claimant had mentioned in his appeal that he had previously been diagnosed as suffering with depression and anxiety which may have affected his communication with others, Mr Jeram said that that he did not specify though that he had a disability, and he at no point disclosed any details of this on his vetting form either. This is incorrect. At paragraph 11 of the Claimant’s appeal he stated that the rudeness or impolite tone was “something which arose as a direct consequence of my disability.”

[125]We note the concluding comments of Mr Jeram that he was content to disregard some of the matters which had been highlighted, but his key concerns related to the previous racial comment the Claimant had made, the Claimant’s general behaviour towards others which had caused him to question his suitability for the role, together with examples where the Claimant had displayed “rude, unprofessional, confrontational, offensive behaviour” as well having information of him making an offensive comment, wearing inappropriate clothing, and a previous publication that could cause conflict. Mr Jeram recorded his concern that the Claimant would not be able to uphold the policing principles and adhere to the standards of professional behaviour as a police officer as they were examples of him not doing this in the past.

[126]Mr Jeram’s rationale was reviewed by Mr H who recorded his agreement with it. Mr Jeram informed the Claimant of the outcome by way of email dated 31 July 2020. The Claimant was advised that his appeal had been refused because of the following: i. The Claimant’s interactions with the Respondent’s staff following his 2017 vetting rejection which fell way short of the standards expected of someone wishing to become a police officer. ii. The “many complaints, various attempts of litigation, and a pending employment tribunal were initiated by yourself, in relation to multiple BCH police personnel you had interactions with during that recruitment process and beyond.” iii. The “Bastard Muslims” comment in 1998.

[127]It was evident from Mr Jeram’s concluding sentences that the above three reasons were the main reasons for refusing the Claimant’s appeal and maintaining the decision to refuse vetting made by Mr Lamb. Nevertheless we also find that the Thin Blue Line paper was also a significant factor in the decision to dismiss the appeal as it was clear from the rationale that this presented a concern that defence counsel may seek to undermine him in a criminal trial if appointed. 10.5 Reserved judgment with reasons – rule 62 26 March 2017

[128]The Claimant filed his ET1 claim form on 3 July 2020 which pre-dated the appeal outcome from Mr Jeram. The Respondent filed its ET3 Response on 23 October 2020.

[129]The Claimant has made reference to having been offered the role of Special Constable with TVP and argues that he passed them the same information as he had the Respondent and yet they passed his vetting. The Respondent has not denied he passed that vetting, Mr Jeram has said he cannot confirm that the Claimant had done so. The Tribunal has not been provided with the Claimant’s application to TVP nor proof of his vetting clearance, however we have had no reason to doubt the Claimant’s honesty at any point in our considerations and we are willing to accept in the absence of any information to the contrary, that he received vetting clearance as he started in the role until it was terminated on grounds that he is also a barrister.

[130]Some time was spent on this issue in the hearing however the relevant point as Mr Jeram has argued is that it is possible for two different police forces to reach two different decisions after taking into account their own situations and their risk appetite for example. The Claimant disputes this and appears to argue that the decisions should be consistent, however this fails to take into account that when the APP and Vetting Code are read, and also the template criteria on the vetting rationale itself, there is a wide area of discretion which creates considerable potential for two decision makers to make different decisions with the same information provided to them. We also noted the oral evidence from Mr Jeram that he had recently attended a vetting symposium where one of the issues discussed was that it is impossible to have absolute consistency of decision making and in one example various decision makers had come to different conclusions. We found that evidence to be both candid and honest.

[131]The Claimant says that the only difference between the TVP and the Respondent’s organisation is that there was no history between the Claimant and TVP. This may be true, however the reference to history is wider than having merely carried out a protected act by bringing a discrimination claim against Hertfordshire Constabulary. The “history” which the Claimant refers to includes all of his communications and complaints with the Respondent.

[132]During the course of the hearing the Claimant confirmed that the language he had previously used was unacceptable and that he would no longer use that sort of language. The Claimant also referred us to a positive reference dated 17 March 2023 from an external firm of solicitors who had instructed the Claimant as a barrister over two years, and he also referred us to positive feedback received from clients in June 2022 and March 2023. The Tribunal has no reason to doubt the veracity of those documents which appear genuine, however our focus is on what was known to the Respondent at the material time which was when the Claimant submitted his Vetting Application in November 2019 and the appeal in April 2020. Accordingly, we do not place any weight on these documents.

[133]We also note that with respect to the reasonable adjustments complaint the Claimant has argued that the Respondent should have lowered the threshold that was being applied in order that his 10.5 Reserved judgment with reasons – rule 62 27 March 2017 communications were not a sufficient reason to fail vetting. The Claimant was not able to tell us in evidence where the threshold should sit, however we have explored this proposed adjustment by reference to what else the Claimant told us. The Claimant said that the communications he sent were because it was he who was suffering the injustice in the 2017 vetting process, and he suggested that he would not behave in that way when dealing with members of the public. We find that a difficult proposition to agree with.

[134]The Respondent has made it clear throughout the vetting rationale and their evidence before us, that the Claimant would be faced with far more challenging people if appointed as a police officer. We did not require any specific evidence on this as we consider it to be a matter of common sense. Lowering the threshold as suggested would not address the underlying issue which is the Claimant’s propensity to respond to challenging situations in a rude, aggressive or derogatory manner. We note the evidence of the Respondent that police officers should be expected to calm situations and find common ground, however we find that there were genuine reasons why the Respondent was concerned how the Claimant would respond to the public.

[135]We further note that the Claimant has suggested that it would have been an adjustment to have offered him guidance on managing his communications in future rather than taking them into account and failing his vetting. The Respondent had already made the Claimant aware that his communication was unacceptable, it was evident in the decision from Mr Lamb and also the vetting rationale once disclosed to the Claimant. This did not assist and resulted in fresh criticisms of Ms B and Mr H, and criticism of Mr Lamb as well.

[136]During the hearing the Claimant said that he could have been offered an interview as an adjustment. We noted Mr Lamb’s oral witness evidence was that it would not have assisted as the interview was generally offered in relation to management vetting or where there were queries which need to be answered, and his position was that he had sufficient information and that an interview would not have assisted. We accept that evidence as we do not see what else an interview would have achieved given that it was clear from the Claimant’s vetting appeal that he still continued to use some level of inappropriate language and he continued to make personal criticisms of people. A vetting interview would not have assisted him if appointed and faced with challenging members of the public.

[137]The Claimant has also suggested that Mr Lamb could have spoken to the people who had interviewed him for the roles he applied for with the Respondent in 2019, or that he could have spoken to Garry Forsyth the Chief Constable of Bedfordshire Police. This was on the basis that the Claimant had dealings with Mr Forsyth in his role as Independent Member of the Bedfordshire Police and Crime Panel. The Claimant referred to an email between him and the Chief Constable of 1 July 2020 [supplemental bundle page 31] which had been friendly and he suggested that Mr Forsyth could have told Mr Lamb about their interactions and how he behaved. We noted that Mr Lamb maintained that none of these things would have assisted him with the vetting decision. 10.5 Reserved judgment with reasons – rule 62 28 March 2017

[138]We find that nothing more could have been gained by speaking to the interviewers or the Chief Constable about how the Claimant had behaved in their presence. The Claimant’s interactions with those people would have been in completely different circumstances and not in situations where the Claimant’s offensive and derogatory communications had previously manifested.

[139]The Claimant has argued that these steps would have assisted as there had been a real difference in his behaviour in 2020. We do not agree. Whilst Mr Lamb confirmed that he had not experienced any issues in his communications with the Claimant, this was before the Claimant had submitted his vetting appeal. We note that some of the inappropriate communication was still apparent up to April 2020 in the Claimant’s vetting appeal as he continued to make reference to competence and integrity of those he disagreed with. We find that speaking to people the Claimant had not been rude to would not have assisted at all.

[140]The Claimant has challenged the Respondent’s reliance upon his 1998 comment about Muslims and he has drawn our attention to other incidents where serving officers had been investigated for naming racist comments but had not been dismissed, and in one case it appeared that they had not been given a formal penalty. We found that argument to be unconvincing simply because we do not know what comments were made in those cases or anything about the context. We also note that these are unlikely to be genuine comparators given the Claimant’s refusal was not solely on the basis of that comment but with a range of other issues causing concern to the Respondent.

[141]Towards the end of his evidence Mr Jeram said that that to be blunt, the qualities shown in the racist comment and the poor communications “is not what we want to see in the police force.” We accept that comment was indeed blunt, but we also felt that it was genuinely meant, that the Respondent rejected the Claimant because of the language he used to their staff and the comment he had made in 1998. Submissions

[142]We were provided with 21 pages of written submissions from the Claimant written submissions from the Respondent of 7 pages. We also heard oral submissions from both sides. We have taken those submissions into account and their contents are not repeated here. We were also referred to the following authorities which we have considered: Derbyshire v St Helens Metropolitan Borough Council

[2007] ICR 841

, HL Woodhouse v West North West Homes Leeds Limited

[2013] IRLR 773

EAT Ministry of Defence v Jeremiah

[1980] QB 87

Nagarajan v London Regional Transport

[2000] 1 AC 501

HL Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, HL Cosgrove v Caesar and Howie

[2001] IRLR 653

, 10.5 Reserved judgment with reasons – rule 62 29 March 2017 Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

Igen v Wong

[2005] IRLR 258

CA Hardy & Hansons plc v Lax

[2005] ICR 1565

, CA EB v BA

[2006] EWCA Civ 132

Villalba v Merrill Lynch & Co Inc & Others

[2007] ICR 469

EAT Madarassy v Nomura International plc

[2007] EWCA Civ 33

Blackburn & Anor v Chief Constable of West Midlands Police

[2009] IRLR 135

, CA) Martin v Devonshires Solicitors

EAT/0086/10

Country Style Foods Ltd v Bouzir

[2011] EWCA Civ 1519

JGE v The English Province of Our Lady of Charity and anor

[2012] IRLR 301

, CA Catholic Child Welfare Society and ors v Various Claimants and Institute of the Brothers of the Christian Schools and ors

[2012] UKSC 56

Chief Constable of Yorkshire Police v Homer

[2012] ICR 1065

, HL Pathan v South London Islamic Centre EAT 0312/13; Waddingham v NHS Business Services Authority ET/1804896/2013 and ET/1805624 Pnaiser v NHS England and anor

[2016] IRLR 170

Brightman v TIAA Ltd EAT 0318/19 Royal Mail Group Ltd v Efobi

[2021] UKSC 33

XXXX v HR Rail SA

[2022] IRLR 456

, ECJ Warburton v Chief Constable of Avon and Somerset Police

[2023] EWCA Civ 209

Law Discrimination

Law

[143]Section 39 Equality Act 2010 provides: Employees and applicants (1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; … (c) by not offering B employment. 10.5 Reserved judgment with reasons – rule 62 30 March 2017 … (3) An employer (A) must not victimise a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; … (c) by not offering B employment. Burden of proof

[144]Section 136 Equality Act 2010 provides: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[145]There is a two-stage process. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden will then shift to the Respondent to show a non-discriminatory reason for the difference in treatment.

[146]Guidance to Tribunals on the burden of proof can be found in a number of cases including Igen v Wong

[2005] IRLR 258

which was approved in Madarassy v Normura International Plc

[2007] EWCA 33

[147]In Igen the Court of Appeal cautioned tribunals “against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground” however it also confirmed that where the burden has shifted to an employer then: “To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [the particular protected characteristic] since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive 97/80.”

[148]Similarly In Madarassy Mummery LJ cautioned: “…The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an act of discrimination.” 10.5 Reserved judgment with reasons – rule 62 31 March 2017

[149]Mere unreasonable treatment by an employer “casts no light whatsoever” as to the question of whether an employee has been treated unfavourably - Strathclyde Regional Council v Zafar

[1998] IRLR 36

. This has also been followed by the Employment Appeal Tribunal in Law Society and others v Bahl

[2003] IRLR 640

where it was held that mere unreasonableness is not enough as it tells us nothing about the grounds for acting in that way. Unreasonable behaviour can go to the credibility of a witness who is trying to argue that their actions were not motivated by the characteristic in question. If there is unreasonable treatment then a Tribunal will more readily reject the employer’s explanation for it than it would if the treatment had been reasonable. In any event, a Tribunal must also take into consideration all potentially relevant non-discriminatory factors which could realistically explain the conduct of the alleged discriminator.

[150]In EB v BA

[2006] EWCA Civ 132

the Court of Appeal considered the burden of proof and reminded tribunals that once the burden has shifted to the employer it is not for a Claimant to disprove what appears to be a plausible explanation from the employer, and that employers should not be permitted to escape the burden of proof provisions by leaving it to the employee to prove their case.

[151]More recently the Supreme Court in Royal Mail Group Ltd v Efobi

[2021] UKSC 33

considered the wording of the burden of proof provisions in s. 136 Equality Act 2010 which refers to “there being “facts from which the court could decide, in the absence of any other explanation, that a person” had discriminated.” Discrimination arising from disability

[152]Section 15 Equality Act 2010 provides: “Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something 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.”

[153]The starting point is that the disability must have the consequence of causing something (the “something arising”) and secondly the treatment alleged to have been unfavourable must have been because of that something arising - Basildon & Thurrock NHS Foundation Trust v Weerasinghe

UKEAT/0397/14/RN

[154]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor

[2019] ICR 230

held that only a relatively low threshold 10.5 Reserved judgment with reasons – rule 62 32 March 2017 of disadvantage is being needed. One could answer the question by asking whether the Claimant was in as good a position as others. A comparator is not required to show unfavourable treatment.

[155]There must be a connection between the unfavourable treatment and the something arising from disability. It is insufficient for the disability itself to be relied upon, it must be the something arising in consequence of disability which is said to be the reason for or the cause of the alleged unfavourable treatment – Robinson v Department for Work and Pensions

[2020] EWCA Civ 859

. However, the something arising from disability only needs to be an effective cause of the unfavourable treatment - Hall v Chief Constable of West Yorkshire Police

2015 IRLR 893

[156]Guidance for Tribunals as to the correct approach to claims of discrimination arising from disability can be found in Pnaiser v NHS England

[2016] IRLR 170

:(a) The tribunal must first identify whether there was unfavourable treatment and by whom.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment.

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'.

[157]Where a Claimant proves facts from which the Tribunal could conclude that there was discrimination arising from disability, the burden of proof will then shift to the Respondent to prove a non-discriminatory explanation, or to seek to justify the treatment as a proportionate means of achieving a legitimate aim. The burden of establishing this defence is on the Respondent. In Homer v Chief Constable of West Yorkshire Police

[2012] UKSC 15

it was held that what is required is(i) a real need on the part of the Respondent;

(ii) what it did was appropriate (rationally connected) to achieving its objectives; and

(iii) that it was no more than was necessary to that end.

[158]In Hardy & Hansons plc v Lax

[2005] ICR 1565

it was held that it is for a tribunal to make its own judgment as to whether the practice complained of was reasonably justified, and that there is no range of reasonable responses tests. Rather the more serious the disparate impact, the more cogent must be the justification for it. A measure may be appropriate to achieving the aim but to go further than is reasonably necessary in order to do so may make it disproportionate. 10.5 Reserved judgment with reasons – rule 62 33 March 2017

[159]It is also appropriate to ask whether a lesser measure could have achieved the employer’s legitimate aim – Essop and Naeem v Home Office (UK Border Agency) and Secretary of State for Justice

[2017] UKSC 27

. Reasonable Adjustments

[160]Section 20 Equality Act 2010 provides: “Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A 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.” …

[161]Section 21 Equality Act 2010 provides: “Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”

[162]In Environment Agency v Rowan

[2008] ICR 218

and General Dynamics Information Technology Ltd v Carranza

[2015] IRLR 4

, the EAT gave general guidance on the approach to be taken in the reasonable adjustment claims. A Tribunal must first identify:(1) the PCP applied by or on behalf of the employer;

(2) the identity of non-disabled comparators where appropriate; and

(3) the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with those comparators. 10.5 Reserved judgment with reasons – rule 62 34 March 2017

[163]Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified. In Latif the EAT gave guidance as to how Tribunals should approach the burden of proof in failure to make reasonable adjustments claims. The burden of proof only shifts once the Claimant has established not only that the duty to make reasonable adjustments has arisen, but also that there are facts from which it could reasonably be inferred, in the absence of an explanation, that it has been breached. It was noted that the Respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given its own particular circumstances.

[164]Therefore, the burden is reversed only once a potential reasonable adjustment has been identified. It will not be in every case that the Claimant would have to provide the detailed adjustment that would have to be made before the burden shifted, but “it would be necessary for the Respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”. The proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, not even until the Tribunal hearing.

[165]The case of Lamb v the Business Academy Bexley UKEAT/0226/JOJ provides guidance as to what may amount to a PCP. It was held that the phrase is to be construed broadly, having regard to the statute’s purpose of eliminating discrimination.

[166]A provision can include any contractual or non-contractual provision or policy as well as potentially a one off decision - Starmer v British Airways Plc

[2005] IRLR 862

. A criterion means any requirement, pre- requisite, standard, condition or measure applied whether desirable or unconditional. A practice means the employer’s approach to a situation if it does happen or may happen in the future. All that is necessary is a general or habitual approach by the employer - Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

. In Nottingham City Transport Ltd v Harvey

UKEAT/0032/12

Langstaff J referred to “practice” as having an element of repetition.

[167]This approach has been affirmed in Ishola v Transport for London

[2020] EWCA Civ 112

as the Court of Appeal held that the words “provision criterion or practice” suggest a state of affairs indicating how similar cases will be treated in the future. A one off act can amount to a practice if there is some indication that it would be repeated if similar circumstances arise in future.

[168]For the duty to arise, the employee must also be placed at a "substantial disadvantage" in comparison with persons who are not disabled. Therefore, a comparative exercise demonstrating substantial disadvantage is required. Substantial in this context means “more than minor or trivial” according to section 212(1) of the Act.

[169]There is no requirement in the Equality Act for a strict causation test linking the disadvantage caused by the PCP to the Claimant’s alleged 10.5 Reserved judgment with reasons – rule 62 35 March 2017 disability. All that is necessary is that the Claimant prove facts from which a tribunal could infer that the PCP simply put the Claimant at either:(i) a disadvantage compared to non-disabled people because they are a disabled person (rather than because of the disability); or

(ii) that because the Claimant was a disabled person, the PCP, whilst causing a disadvantage to everyone whether disabled or not, put the Claimant at a more severe disadvantage because they were a disabled person when compared to non-disabled people Sheikholeslami v University of Edinburgh

UKEATS/0014/17

[2018] IRLR 1090

[170]It is necessary for a reason connected with the employee’s disability to be the cause of the substantial disadvantage experienced - Hilaire v Luton Borough Council

[2022] EAT 166

. Whether an employee is placed at a substantial disadvantage depends on the actual facts, regardless of what the parties believe the facts to be.

[171]The next question is whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. There is no onus on a disabled person to suggest adjustments. The duty to consider making reasonable adjustments falls on the employer. In Cosgrove v Caesar and Howie

[2001] IRLR 653

, the EAT held that it was principally for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them, however if the adjustment to be suggested is wholly exceptional then it is for the employee to advance it. When assessing whether a particular step would have been reasonable, this involves considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the resources and support available to it.

[172]As to whether an adjustment would be effective, this is a question to be answered on the evidence available at the time the decision was taken whether to implement it - Brightman v TIAA Ltd EAT 0318/19. If based on the employee’s health position at the time the employer’s decision was made, there was no realistic prospect of a particular adjustment being effective, then the employer would not become retrospectively liable for failure to make reasonable adjustments simply because the employee’s health unexpectedly improved so as to make the step effective. There must be a real prospect the step would have made a difference - First Group Plc v Paulley

[2017] UKSC 4

[173]In Romec v Rudham

[2007] All ER 206

the EAT held that if the adjustment sought would have had no prospect of removing the substantial disadvantage then it could not amount to a reasonable adjustment. However, if there was a real prospect of removing the disadvantage it may be reasonable. In Cumbria Probation Board v Collingwood

[2008] All ER 04

the EAT stated “it is not a requirement in a reasonable adjustment case that the Claimant prove that the suggestion made will remove the substantial disadvantage.”

[174]The question of whether a particular adjustment is reasonable is an objective test - Smith v Churchills Stairlifts Plc

[2006] ICR 524

. The 10.5 Reserved judgment with reasons – rule 62 36 March 2017 Tribunal must examine the issue not just from the perspective of the Claimant but also consider wider implications including the operational objectives of the employer. Ultimately, it is the Tribunal’s view of what is reasonable that matters. In assessing what adjustments are reasonable, the focus must be on the practical result of the steps which the employer can take, not on the thought processes of the employer when considering what steps to take - Bank of Scotland v Ashton

[2011] ICR 632

[175]There is no objective justification defence available in respect of an employer's failure to make reasonable adjustments. The proposed adjustments are either reasonable or they are not. Victimisation

[176]Section 27 Equality Act 2010 provides: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[177]When assessing whether a Claimant has been victimised it is appropriate for a Tribunal to ask: 10.5 Reserved judgment with reasons – rule 62 37 March 2017

(i) did the alleged victimisation arise in any of the prohibited circumstances covered by the Equality Act 2010?

(ii) if so, did the employer subject the Claimant to a detriment? and

(iii) if so, was the Claimant subjected to that detriment because of having done a protected act, or because the employer believed that the Claimant had done, or might do, a protected act?

[178]The employee must be subjected to a detriment, which has been decided to mean being placed at a disadvantage – Williams. above. In Ministry of Defence v Jeremiah

[1980] ICR 13

, CA it was held that detriment is established if the treatment complained of is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment.

[179]The detriment relied upon by a Claimant must be linked to the protected act. Whereas conscious motivation on the part of the discriminator is not a necessary ingredient of victimisation – Nagarajan v London Regional Transport

[1999] IRLR 572

, it is still necessary to determine the reason for the treatment complained of - Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, HL. A detrimental act in response to a complaint of discrimination will not constitute victimisation if the reason for it is not the complaint as such, but rather some feature of it which can properly be treated as separable - Martin v Devonshires Solicitors

EAT/0086/10

[180]If protected acts have a ‘significant influence’ on the employer’s decision-making, discrimination will be made out - Nagarajan. The word “significant” was considered by the Court of Appeal in Igen, where it was clarified that for an influence to be ‘significant’ it does not have to be of great importance – is “an influence which is more than trivial.” The words “significant” and “trivial” were considered by the EAT in Villalba v Merrill Lynch and Co Inc and ors

[2007] ICR 469

, EAT where the EAT upheld a first instance decision that the protected act complaint was ‘only a very small factor, not a significant influence’ in the decision to remove that Claimant from her role therefore it did not amount to an act of victimisation. Conclusions and analysis Victimisation

[181]The Tribunal has found that Mr Lamb considered as part of the vetting process ‘multiple instances’ where the Claimant’s interactions ‘fell way short of the standards’ of somebody wishing to become a police officer and describing his communications as ‘derogatory and offensive’. It clear from the vetting rationale and the outcome letter of 27 February 2020 that he had done so. The Tribunal has also found that Mr Lamb considered as part of the vetting process ‘Many complaints, various attempts of litigation, and a pending employment tribunal’ by the Claimant after his rejection by Hertfordshire Police force.

[182]As regards Mr Lamb attempting to rely on irrelevant factors when rejecting the Claimant’s vetting, this complaint was clarified at the start of the hearing. It is not for this Tribunal to act as a vetting appeal body, nor should 10.5 Reserved judgment with reasons – rule 62 38 March 2017 we seek to tell police forces which vetting criteria they should take into account. Those matters are to be left to the subject matter experts. Our role is to consider whether the decision reached was an act of victimisation or discrimination. The Claimant has confirmed that this complaint is that various matters were taken into account to act as padding so as to support a decision to reject him because he had previously brought discrimination proceedings against Hertfordshire Constabulary.

[183]We note that the Respondent maintains that the victimisation claim is ill conceived as the Respondent’s reasons were the same as of Hertfordshire Constabulary when the Claimant’s vetting had been rejected by them. Whilst that may be true, it is important to note that the Claimant had carried out a protected act since that time, and moreover our role is not to rubber stamp previous decisions but to consider them afresh. The difference in this case is that the Respondent had made reference to the protected act (and many other matters) both in its decision making rationale an the vetting outcome letter.

[184]We have found that the Respondent was aware of the protected act at the time of conducting vetting, and we have also found that it was a factor which was taken into account as it was clearly referred to in the vetting rationale and the vetting outcome decision of 27 February 2020. The rejection of the Claimant’s vetting prevented him from passing to the next stage of the recruitment process and recruitment was stopped. We find that clearly this would amount to a detriment. Accordingly we find that the burden of proof has shifted to the Respondent to prove a non-discriminatory reason for the detrimental treatment.

[185]As regards causation, we have asked ourselves why the Claimant was treated as he was. We have paid close attention to the Respondent’s explanation for the treatment complained of and we have found that the following factors relied upon in making that decision had a significant influence on that decision:(i) The Claimant’s comment about Muslims in 1998 which the Respondent perceived to be racist and caused the Respondent concern as to how the Claimant would behave if appointed.

(ii) The Respondent’s perception that the Claimant demonstrated a pattern of behaviour that he was unable to get along with employers and colleagues.

(iii) The contents of the Claimant’s correspondence to the Respondent’s staff following the vetting rejection in 2017 and subsequent correspondence (including concerning his subject access request) which was deemed to be derogatory and offensive, and at times threatening. This also caused the Respondent concern as to how the Claimant would behave if appointed.

(iv) The Claimant’s published material, specifically his Thin Blue Line article. which could have been used to discredit him as a witness in a criminal trial or could cause friction with future colleagues. 10.5 Reserved judgment with reasons – rule 62 39 March 2017

[186]We consider that the fact that the Claimant had brought the disability discrimination claim was not the reason for the vetting refusal, it was a very small or trivial part in a far bigger picture which caused the Respondent concern that the Claimant was unable to get on with his employers or colleagues. As such we consider that the claim against Hertfordshire Constabulary can be properly treated as separable.

[187]Having shifted the burden to the Respondent we are satisfied that a non-discriminatory reason for the treatment has been provided and the complaint of victimisation fails. Discrimination arising from disability

[188]We find that the Respondent was aware of the Claimant’s disability as it was explicitly referred to in his application form. Knowledge has been conceded by the Respondent.

[189]We find that the tone and language of the Claimant’s communications was something which arose in consequence of his disability. We rely upon the medical evidence form Dr Grewal which records that this behaviour would have been difficult for the Claimant to control.

[190]As set out above, we have already found that Mr Lamb considered as part of the vetting process multiple instances’ where the Claimant’s interactions ‘fell way short of the standards’ of somebody wishing to become a police officer and describing his communications as ‘derogatory and offensive’. We have already found that the Respondent rejected the Claimant’s vetting clearance and his application for employment. As a result of this we find that the Claimant was unable to work as a police constable without vetting clearance, therefore we find that this amounts to unfavourable treatment.

[191]As to whether this was done because of something arising in consequence of his disability, we have followed the guidance in Pnaiser in reaching our decision. We find that the vetting was rejected partially due to something arising in consequence of the Claimant’s disability. We have found that a significant part of the reason to refuse vetting was due to the Claimant’s 1998 comment about Muslims. The Claimant has not sought to argue that the comment was something arising from his disability. We have also found that the Claimant’s published material, specifically the Thin Blue Line paper was part of the reason his vetting was refused. The Claimant has not sought to argue that the paper was written due to something arising from his disability.

[192]We do find that part of the reason for refusing the vetting was due to the content of the Claimant’s correspondence which the Respondent referred to. We have already found that this communication arose as a consequence of the Claimant’s disability. We also find that the vetting was refused due to the Respondent’s belief that the Claimant was unable to get on with his employers or potential employers future colleagues. We also find that was something which arose as a consequence of the Claimant’s disability as it is closely connected with the manner in which he expressed himself at the material times including derogatory, offensive or generally challenging correspondence. Accordingly we find that part of the reason the Respondent 10.5 Reserved judgment with reasons – rule 62 40 March 2017 refused the Claimant’s vetting was due to something arising from his disability. Whilst it was only one of a number of reasons for refusing the vetting, we nevertheless find that it was an effective cause of the unfavourable treatment.

[193]Having shown the something arising, the unfavourable treatment, and the connection between the two, we find that the burden of proof has shifted to the Respondent to either provide a non-discriminatory reason for the treatment or to seek to justify it as a proportionate means of achieving a legitimate aim.

[194]We find that the Respondent had a legitimate aim which was to recruit individuals who will become well conducted police officers. This was clear from the evidence of Mr Lamb and Mr Jeram, and it is set out in the APP and the Police Code of Ethics. The Claimant has said that he takes no issue with the legitimate aim relied upon by the Respondent.

[195]We find the vetting refusal, which serves to exclude people who have conducted themselves in a derogatory or offensive manner, was a proportionate means of achieving that legitimate aim. In this particular situation given the content and tone of the Claimant’s correspondence with the Respondent, his appointment to the Respondent at that time would have presented a significant risk, not just to the reputation of the Police, but a risk of the Claimant getting into a disagreement with the public who might be far more challenging to him, and thus in turn this would have created a potential risk to the Claimant. There was also a risk of the Claimant getting into conflict with his colleagues, 18 of whom he had already complained about both internally and externally. Accordingly we find that there was a real need on the part of the Respondent, that the vetting refusal was rationally connected to achieving those objectives, and was no more than was necessary to that end. We note that this was a serious impact upon the Claimant, however we consider that the Respondent provided a cogent justification for that disparate treatment and that it was reasonably necessary.

[196]We have considered if there was a lesser measure which would have achieved the same aim. We do not find that any of the alternative measures put forward by the Claimant would have done so. We do not consider that speaking to his interviewers from 2019 or the Chief Constable whom he had dealt with, would have made any difference at all. The scenarios where the Claimant had interacted with them were completely different to his vetting refusal in 2017, and also different to the situation he would find himself in once appointed as a police officer.

[197]Having taken all of the evidence into account, we find that there was no more proportionate means the Respondent could have adopted in achieving its legitimate aim, and those circumstances, the decision to reject the Claimant’s vetting was in our view, a proportionate response and the treatment was in our view justified. The complaint of discrimination arising from disability therefore fails. Failure to make reasonable adjustments 10.5 Reserved judgment with reasons – rule 62 41 March 2017

[198]We find that the Respondent was aware of the Claimant’s disability as it had been expressly referred to in his application form. We also find that the Respondent had a requirement for applicants not to be offensive and derogatory to members of the Respondent’s staff. We find that this amounted to a PCP.

[199]The Claimant’s offensive and derogatory communications arose as a consequence of his disability at that time, and this would have been difficult for the Claimant to control. When placed in a challenging situation, such as when his vetting was refused in 2017, we found that the Claimant resorted to using derogatory and offensive language, and even when this was pointed out to him it still appeared that it was difficult for him to control. A hypothetical comparator without the Claimant’s disability would not have faced such a disadvantage by the application of the PCP. Accordingly the application of the PCP upon the Claimant had more than a trivial impact upon him, and we find that it presented a substantial disadvantage for the Claimant when compared to non disabled people.

[200]We find that the Respondent did have that knowledge at the material time in November 2019. This is because the Claimant made explicit reference to the disability within his application form and he said that it could cause him to be rude or abrupt sometimes. In addition the Respondent were aware of this from the Claimant’s previous disability discrimination claim where it was mentioned in an earlier judgment.

[201]We note that there was no consideration of reasonable adjustments by Mr Lamb or Mr Jeram. This was unfortunate as the duty to consider adjustments rested with the Respondent which had been on notice that the Claimant was disabled and that his disability would have manifested itself in the Claimant’s communications.

[202]In considering the reasonableness claim we have also taken into consideration the guidance from the EHRC Employment Code which sets out factors to be considered (para 6.28) which includes the effectiveness of the proposed adjustment, the practicality of that adjustment to the employer, and also the type (and size) of the employer.

[203]We do not consider that the burden of proof has shifted to the Respondent with respect to the reasonable adjustments claim. We have found that the PCP applied put the Claimant to a substantial disadvantage. The Claimant has also suggested adjustments which he says the Respondent should have made for him. However, the Claimant has not provided evidence which would lead us to conclude that the adjustment(s) would have been reasonable, or would have eliminated or reduced the disadvantage to him. Accordingly the burden of proof has not shifted to the Respondent.

[204]By the time of the Claimant’s closing submissions he appeared to have adapted his claim as he has argued that disregarding his communications from 2017, and making a decision only on interactions from 2019/2020 would have been a reasonable adjustment “likely in conjunction with other adjustments” such as deferring the vetting decision and observing how the Claimant interacted with the other recruitment stages, and also conducting a vetting interview to ask why he interacted as he did in 2017/18. 10.5 Reserved judgment with reasons – rule 62 42 March 2017 This departs from the agreed list of issues, nevertheless we will consider this new argument given that this was put to the Respondent’s witnesses during their evidence and they were able to deal with it.

[205]With respect to disregarding the Claimant’s offensive and derogatory communications, we have asked ourselves whether there was a real prospect that the proposed adjustment would have made a difference. We find that it would not. Had the Respondent disregarded the Claimant’s offensive and derogatory communications this would only have allowed the Claimant to be appointed, it would not have addressed his propensity to use this sort of communication in the future either with colleagues or with the public and the potential ramifications that may have followed that. Based upon the evidence before the Respondent at the time, we find that there was no evidence available to them which would have suggested that the proposed adjustment would have had a realistic prospect of being effective. Had the Claimant been appointed and been placed in a challenging situation (which seems to us to be inevitable with policing) the same substantial disadvantage would have existed and it would have been difficult for the Claimant to control his response and it would have exposed both he Claimant and the Respondent to risk. Accordingly in our view the proposed adjustment would have had no prospect at all of removing the substantial disadvantage to the Claimant.

[206]We also consider that the adjustment would not have been reasonable in any event as it would have required the Respondent to depart from the Police Code of Ethics and its operational objectives, and would have had the effect of allowing someone to join the force who had routinely displayed offensive and derogatory behaviour to its staff in the past, but also had a propensity to do so in the future when placed in a challenging situation involving the public. We consider that it would not have been reasonable to have expected the Respondent to have done so.

[207]We also do not find that giving the Claimant a vetting interview or speaking to the Claimant’s interview panel, or speaking to the Chief Constable, would have had a real prospect of making a difference as none of these things would have addressed the Claimant’s propensity to be offensive or derogatory in challenging situations. Neither of these three suggestions would have assisted with the challenges the Claimant would have faced if appointed as a police officer, and the substantial disadvantage he faced with respect to the PCP would have still remained. We do not find the Respondent should have delayed the vetting decision until after the other recruitment steps had been completed and then observing the Claimant’s interactions in that safe environment. We find that nothing would have been gained from observing the Claimant in a completely different scenario. The Claimant’s conduct in 2017 appeared to have continued in 2018 and 2019, with continued examples of it in the appeal document from 2020. Simply reversing the recruitment steps and watching the Claimant’s behaviour in that period would have not had any prospect of assisting.

[208]As regards lowering the threshold that was being applied to the PCP, the Claimant could not tell us where he says this threshold should have sat. Nevertheless, we find that the proposed adjustment of lowering the threshold being applied to the PCP would again suffer from the same difficulties as the proposed adjustment of disregarding the Claimant’s 10.5 Reserved judgment with reasons – rule 62 43 March 2017 communications namely that it would not have had a real prospect of making a difference had the Claimant been appointed and been rude to colleagues or members of the public. It was clear from the evidence available to the Respondent at the time, that the Claimant was continuing to be derogatory in correspondence, therefore we find that simply lowering the threshold would have had no prospect of removing the substantial disadvantage.

[209]Moreover we do not find that it would have been reasonable for the Respondent to have lowered the threshold to such a degree that it would involve disregarding communications of the type that the Claimant had sent to the Respondent from 2017 onwards. To have done so would have required the Respondent to take the risk of the Claimant joining and being offensive or derogatory to colleagues and members of the public in breach of the Police Code of Ethics, with the consequent damage to the reputation of Policing and damage on staff morale. This would have had no prospect of removing the substantial disadvantage.

[210]We did not consider that offering the Claimant guidance on managing his communications would have had a real prospect of making a difference. As set out in this judgment, the Claimant had been well aware that his communications were not acceptable. This was referred to in the aforementioned preliminary hearing judgment of Employment Judge Smail on 12 September 2018 which contained extracts from the Respondent’s records stating that the Claimant had been rude and difficult to deal with, thus putting him on notice in 2018 that his communications were an issue. This was also referred to in the vetting outcome letter of 27 February 2020 and the vetting rationale provided to him shortly after. Despite this the Claimant continued to be derogatory about Ms B and Mr H in his appeal even though he had been made aware of the impact of his behaviour. This was one of many comments where the Claimant had pushed back against criticism of his communications. We therefore find that offering guidance would not have had a real prospect of making a difference as it had already been unsuccessful, we find that it would have had no prospect at all of removing the substantial disadvantage.

[211]Whereas there is no evidence that the Respondent turned its mind to adjustments for the Claimant, we remind ourselves that the focus is not the thought processes of the employer, but rather the practical result of the steps which the employer can take. In this case we have found that there were no adjustments which could have been made to alleviate the substantial disadvantage to the Claimant, and accordingly the claim for reasonable adjustments must fail.

[212]The unanimous decision of the Tribunal is that all the complaints fail and are dismissed.