Mr P Lester v The Commissioner of Police of the Metropolis: 6011617/2024

EMPLOYMENT TRIBUNALS

Case No 6011617/2024

Between

Mr P LesterClaimant

The Commissioner of Police of the MetropolisRespondent

Before

Employment Judge Lewis

Represented himself with the assistance (instructed by Ms D Gold) for claimant

Mr S Nicholls (instructed by Counsel) for respondent

Date 22 August 2025

JUDGMENT

ON LIABILITY The claim for discrimination arising from disability contrary to section 15 of the Equality Act 2010 is not upheld. The claim for failure to make reasonable adjustments is not upheld.

REASONS

[1]The claimant brought a claim for disability discrimination. He withdrew his unfair dismissal claim because he was not eligible to claim as a Police Officer. I clarified at the outset that his claims for pay arrears, holiday pay and other payments were all meant as compensation if he wins his disability discrimination claims, but were not independent claims. - 1 -

[2]The respondent admitted that it knew the claimant was disabled with ‘chronic pain syndrome with migraine’ at the relevant time.

[3]The issues were confirmed at the start of the hearing as agreed at the preliminary hearing. As well as the usual check on time-limits, these were: Discrimination arising from disability (s15) 3.1. Did the respondent treat the claimant unfavourably by dismissing him for long-term ill health absence under the disciplinary policy instead of offering him ill health retirement? 3.2. Did the following things arise in consequence of the claimant’s disability: the claimant’s absence from April 2021 until 5 May 2024? 3.3. Was the unfavourable treatment because of that? Did the respondent dismiss the claimant because of that sickness absence instead of giving him ill health early retirement? Did the respondent use the absence as a reason for dismissal instead of the permanence of his disability? 3.4. Was the treatment a proportionate means of achieving a legitimate aim? The tribunal will decide in particular: 3.4.1. Was the treatment an appropriate and reasonably necessary way to achieve those aims? 3.4.2. Could something less discriminatory have been done instead? 3.4.3. How should the needs of the claimant and respondent be balanced? 3.5. Did the respondent have a PCP of applying the disciplinary policy to longterm absence? 3.6. Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability in that he was dismissed under the disciplinary policy? 3.7. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 3.8. What steps could have been taken to avoid the disadvantage? The claimant suggests allowing him to take early ill health retirement with an immediate pension. 3.9. Was it reasonable or the respondent to take those steps? 3.10. Did the respondent fail to take those steps?

[4]At the preliminary hearing, where the claimant was unrepresented, there had been discussion about what constituted the claimant’s claims as opposed to - 2 - background information. These were identified as above, ie failure to make the reasonable adjustment of allowing the claimant to take ill health retirement with an immediate pension and unfavourable treatment under s15, this being dismissing the claimant instead of offering him ill health early retirement. There is no suggestion of any reasonable adjustments to keep the claimant in employment.

[5]At the start of this hearing, the claimant said that rather than dismissing him, his employer should have referred him back for further consideration of ill health retirement. This was his main argument at his final UPP3 hearing and this was the way he argued his case before me. It is not explicitly put that way in his claim form, but I consider that the way the issue was formulated in the List of Issues was sufficient to encompass referring him back for further consideration. The respondent had no difficulty in addressing this aspect and it is addressed by Mr Marshall in his witness statement.

[6]A further dispute arose during the case as to whether the unfavourable treatment was dismissal per se, with the possibility of ill health retirement coming into it as an alternative to dismissal relevant to proportionality, or whether the unfavourable treatment could only be argued as ‘dismissal instead of offering ill health retirement’. Again, the way the claim form is written does not help me. It seems to me that the same facts and evidence can be looked at either way, given that the claimant did not seek to argue he should not have been dismissed for any other reason. I therefore did not accept Mr Nicholls’ argument that it makes any difference to the evidence and the questioning. The only difference it might make is to the legal analysis and Mr Nicholls was invited to address both aspects in his closing submissions.

Procedure

[7]The tribunal heard from the claimant and, for the respondent, from Jackie Bullock and Dominic Murphy. There was also a witness statement from Antonia Wilkins but she was not called because her evidence did not add anything and the claimant had no questions for her. There was an agreed trial bundle of 2793 pages and the respondent disclosed during the hearing PNB Circular 10.4 and the transcript of the UPP3 hearing. Both parties provided written closing submissions.

[8]I asked the claimant what adjustments would be helpful to him during the tribunal hearing given his disability. He asked that Ms Gold be allowed to help him speak or explain matters. This was agreed, although not when he would be giving evidence. It was also that agreed he could ask for extra breaks when necessary and I would also try to fit in a 5 minute break roughly every half hour so he could get up and move. We also finished early on day 3 to give the claimant overnight to absorb Mr Nicholls’ closing submissions and, as he wished to do, write his own. Fact findings - 3 -

[9]The claimant was employed as a Police Constable in the Westminster Borough Operational Command Unit from 29 May 2007 until his dismissal.

[10]The claimant has suffered from chronic pain and associated migraine issues since 2008 when he was involved in a road traffic collision. The claimant has had mechanical back pain since 2009 and associated right side cervical spondylosis causing neck pain, which was first recognised in 2011. The claimant has had pain management supervision at Winchester NHS Hospital since 2015 and receives treatment from the Pain Team. He has tried numerous treatments and interventions with no lasting success including steroid injections, lower back botulism injections and radio pulse frequency injections.

[11]In addition, the claimant’s migraines recur, often for concentrated periods of days, weeks or even months at a time. He manages his symptoms with medication such as Sumatriptan and Gabapentin.

[12]In 2020, Dr Seifert, a private Consultant in Pain Management and Anaesthesia diagnosed the claimant with ‘chronic pain syndrome’. Dr Seifert was based at The Pain Team Ltd.

[13]The claimant has struggled to maintain consistent attendance at work due to these health issues. From time to time, the claimant was put through attendance management procedures and referred to Occupational Health (‘OH’). Various treatments and adjustments, including to shift times, enabled him to improve for short periods.

[14]The respondent’s Unsatisfactory Performance Process (‘UPP’) is used to address incapacity through ill health as well as poor performance. It is not a disciplinary procedure. There are UPP stage meetings where written improvement notices can be issued and which can ultimately lead to dismissal.

[15]On 9 October 2019, the latest UPP stage 1 meeting was held because the claimant had been absent 152 days in the previous 12 months. The claimant was given a written notice of improvement. This was extended a couple of times because of the late arrival of some office equipment recommended by Access to Work.

[16]The claimant’s attendance did not improve sufficiently and a stage 2 UPP was held on 29 September 2020. The claimant provided written submissions because he was not well enough to attend. On 1 October 2020, the claimant was issued with a stage 2 (final) written improvement notice ending 1 January 2021. This was then extended to 12 January 2022 on the basis that the claimant’s attendance had improved sufficiently.

[17]The last day the claimant worked was 26 April 2021. He was absent through sickness for the remainder of his employment. - 4 -

[18]In May 2021, the claimant asked for a career break so that he could concentrate on medical appointments and improving his health. This was refused because he was awaiting a stage 3 UPP.

[19]On 26 May 2021, the claimant had a Lidocaine infusion which helped his migraines and spinal pain considerably but the improvement in pain levels only lasted one or two months.

[20]On 23 August 2021, the claimant was given pulsed radio frequency injections, but these did not help.

[21]On 13 August 2021, Dr Seifert wrote a ‘to whom it may concern’ letter stating that the claimant had undergone multiple biopsychosocial interventions including rehabilitation at Flint House. He said chronic pain is a complex neurophysiological and multifactorial presentation. Debilitating symptoms can often persist in the absence of significant structural abnormality or pathology. However, symptoms are real and usually associated with significant peripheral and central nervous system hyperactivity.

[22]The UPP stage 3 meeting took place on 5 November 2021. It was adjourned by the chair, with a request for OH to consider ill health retirement.

[23]Dr Ryan, the Force Medical Officer, wrote an OH report dated 2 December 2021 stating that the claimant was unfit for work and he was unable to offer a return to work date. Dr Ryan said that OH supported an application to the SMP for ill health retirement. Dr Ryan said the Selected Medical Practitioner (‘SMP’) could decide whether the claimant met the criteria of permanency.

[24]The referral process for ill health retirement was started on 21 December 2021.

[25]The claimant’s sick pay ended from 6 January 2022. The only pay he received after that was about £200/month, which he thinks may have been London Weighting. The Ill Health Retirement process

[26]The Metropolitan Police Pensions Authority (‘PPA’) is responsible for decisions made under the Police Pensions Regulations regarding ill health retirement. When a police officer is long term sick or diagnosed with a progressive illness, their line manager refers them to OH for an opinion as to whether the individual may meet the criteria for permanent medical unfitness from performing the ordinary duties of a police office. If so, a referral is then made to the PPA.

[27]On receiving a referral, the PPA usually authorises the case to be referred to a SMP who is independent of the PPA. The PPA currently uses just one independent medical practitioner, Dr Cheng. - 5 -

[28]Under regs 75 and 76, the SMP decides whether the officer is medically unfit at the time a decision is made and whether the medical unfitness is ‘at that time likely to be permanent’, ie inability is likely to continue until the officer reaches normal retirement age.

[29]The decision is made on the basis that the officer ‘is taken to receive normal appropriate medical treatment’. It does not include treatment which the PPA decides is reasonable for the officer to refuse.

[30]The officer can appeal against the decision of the SMP. The appeal goes to the Police Medical Appeal Board (‘PMAB’). PMAB is independent of the respondent and operates under a Home Office contract. PMAB considers the matter afresh. It will have the SMP report, the information that was before the SMP and submissions from both sides. It is up to the claimant to submit any updated medical documents.

[31]PMAB has a panel of doctors and uses specialists in the relevant medical conditions. The chair and second are always consultants in occupational medicine and the clinical lead decides which specialist consultants also need to be on the panel.

[32]If the referred officer disagrees with the PMAB decision, he or she can write in to correct any factual misunderstandings. However, there is no further right of appeal. If the officer wants to challenge the decision further, he or she would need to apply to the Crown Court within 3 months of the report.

[33]The Commissioner cannot authorise ill health retirement unless the PPA / PMAB have said the officer is permanently disabled. In the claimant’s case, the UPP3 panel had no discretion whether to offer ill health retirement or not.

[34]The claimant has not tried to argue during this tribunal hearing that the UPP3 panel should have actually granted him ill health retirement. His argument is that it should have made a fresh ill health referral. The claimant’s asessment

[35]In his OH report for the process, Dr Ryan noted that the claimant had been unable to carry out the normal duties of a Police Constable due to chronic pain syndrome affecting him with frequent headaches, neck and shoulder girdle pain. Dr Ryan said the claimant was last fully operational in 2015. Several attempts at rehabilitating him back to work on recuperative plans had been unsuccessful. He has minor changes to his cervical spine at level C3 and C4. He has had extensive manual therapy and pain management techniques as well as a cocktail of analgesia . His response to all therapeutic interventions had not met with success. He is unable to carry out the full duties of a Policeman and the SMP needs to address the question of permanent incapacity.

[36]The PPA referred to matter to Dr Cheng as SMP. His task was to establish whether the claimant was permanently unfit from carrying out the ordinary - 6 - duties of a police officer under reg 81 of the Police Pensions Regulations 2015. ‘Permanently’ meant up to the claimant’s normal retirement age of 60. The claimant was aged 41 at the time.

[37]The claimant attended an appointment with Dr Cheng, on 22 August 2022.

[38]The claimant saw Dr Aldington at the Pain Clinic two days later. Dr Aldington is a Consultant in Pain Management and Anaesthesia. Dr Aldington wrote him a letter dated 24 August 2022 stating ‘I have to be honest and say that I do not see anything getting dramatically better in the foreseeable future. That is not to say you would not have a fulfilling career, but I just do not see it as a police officer. I think your return to an operational role is highly unlikely, but I am not convinced that an administrative role would help you either. I believe we have been through all the sensible modalities and to consider other interventions strikes me as being somewhat foolhardy. ‘ Dr Aldington then referred to a number of functional restoration programmes the claimant had done through Flint House and added, ‘Suggestion has been made of pain management programs. I think the cognitive behavioural component you should be aware of from Flint House … While attending a pain management program may help you cope with your situation, I do not see it significantly increasing your function.’ Dr Aldington concluded, ‘I realise at one level that this is all rather miserable reading. However, I wish to reiterate that I think you will have a very acceptable career in the future, but I cannot see it as a police officer.’

[39]The claimant forwarded this letter to Dr Cheng.

[40]As well as seeing the claimant, Dr Cheng saw the claimant’s OH medical file, the GP records and reports from Dr Ryan, the Force Medical Officer.

[41]Dr Cheng supplied his report on 20 September 2022. On migraine, he recommended various interventions and medications could be tried, including the new CGRP receptor blocks for migraine. In terms of pain generally, he said pain is subjective and the evidence pointed to the claimant having some maladaptive beliefs and behaviours which were likely to be very unhelpful with overcoming his health concerns. He felt the claimant would benefit from an NHS residential pain management programme, which would be different from what he had previously tried, because such programmes are multidisciplinary, pain focused and individually tailored. In conclusion, he felt on the balance of probabilities that there was scope for improvement in the coming years, particularly given the claimant’s relatively young age which is associated with good functional reserve. That would depend on motivation and removal of biopsychological actors which negatively impact on his claim symptoms. On the balance of probabilities, treatment along the lines he had set out in his report would result in sufficient improvement for the claimant to be able to undertake the ordinary duties of a police officer well before compulsory retirement age.

[42]The claimant appealed to the Police Medical Appeals Board (‘PMAB’). - 7 -

[43]The claimant provided written submissions dated 21 March 2023, attaching a number of medical documents. The submissions noted that the claimant had not been fully operational since 2014 and had not worked in any role since 26 April 2021.

[44]The submissions pointed out that the majority of Dr Cheng’s suggestions had already been tried and were unsuccessful; others were not available on the NHS; and Dr Cheng’s opinions had been dealt with by the specialist treating professionals, who had dealt with the claimant for many years.

[45]The PMAB hearing took place on 20 April 2023. The claimant was accompanied by a Police Federation representative. Ms Baldock and Dr Cheng attended for the Police Pension Authority. There were four members of the Board - two Consultant Occupational Health Physicians, one Consultant Neurologist and one Consultant Anaesthesia and Pain Management. The report dated 24 May 2023 rejected the claimant’s appeal. The PMAB unanimously considered that the claimant was not permanently medically unfit for the ordinary duties of a police officer.

[46]The Consultant Neurologist did not believe the claimant was permanently disabled on the basis of his migraines for two reasons. First, he was eligible for the new anti-CGRP therapy, which was a particularly effective treatment. Second, although the claimant’s migraines could be severe, the claimant had said during the appeal that if he had something to do, he would often continue through the headache. Globally, the prevalence of migraines was estimated at 14 – 15% and the majority of individuals with chronic migraine are able to undertake full time employment, including in the Police Service.

[47]The Consultant on Pain Management considered those aspects of pain which were not due to migraine. The claimant reported his main and most relevant problem was right-sided head and neck pain, which was present daily in variable intensity. The Consultant reviewed the history including letters from the claimant’s doctors. He spoke to the claimant and conducted a physical examination. He stated that the underlying cause of the right-sided neck and upper thoracic pain was unclear. The claimant’s responses to various interventions over the years suggested a degree of somatisation. The Consultant said it would be worth trying baclofen. Also there was scope for more focused work with psychological therapy because there was evidence that the claimant’s response to pain was maladaptive. Overall, the Consultant did not feel that the claimant’s current medical lack of capacity to discharge the duties of a police officer was permanent as not all management options had been exhausted.

[48]In conclusion, overall the PMAB did not consider that the claimant’s headache symptoms were permanently disabling. On the balance of probability, the claimant had a chronic pain condition, but the main disabling feature was his maladaptive processing of pain. All options for appropriate management of maladaptive behaviour had not been attempted. He had not had the benefit of focused pain psychology interventions. With a more - 8 - psychological approach, there was no medical reason why the claimant could not return to the ordinary duties of a police officer. UPP3

[49]In the 3 years prior to 29 March 2021, the claimant had had 383 days sickness.

[50]The stage 3 UPP meeting was held on 5 April 2024. The three-person panel was chaired by Mr Murphy, a Commander in the Metropolitan Police and Head of Counter Terrorism. The claimant was represented by a Federation representative, PC Davies.

[51]The claimant provided a lengthy written submission for this hearing which one of his Federation representatives had written. The claimant also made oral submissions. The respondent produced the transcript of the meeting during the tribunal hearing.

[52]The claimant also supplied the UPP3 meeting with two recent medical letters, which at one point the panel paused to read. One was a letter from Dr Aldington dated 26 March 2024, updating his previous letter. He noted that he had first met the claimant in October 2015. Since then, he did not think there was any intervention that had not been tried and this included baclofen and CGRP injections. Dr Adlington concluded ‘As we discussed, I still do not believe there is a cure for you that will allow you to return to duty. I do not see this changing after 9 years of trying.’ Dr Aldington did not say anything about the claimant’s pain having got worse in the last year.

[53]The other was a letter from the claimant’s GP dated 28 March 2024. She said that since the Appeals Board assessment, the claimant had ‘continued to struggle with severe chronic migraines and debilitating headaches’. She said that neurology had tried him on Galcanezumab which had not helped and the trial had stopped. The claimant was in discussion with them about trying other CGRP antagonists but that was limited due to his hypertension. The GP said the claimant had had further trigger point injections with the Pain Clinic, but these seem to be becoming less effective. She said the claimant was getting 10 migraine episodes/month extending for 2 days and chronic non migraine headaches on at least 15 days/month. She said it was looking less likely that there would be a treatment option for the claimant. This was all very hard for him to come to terms with and recently had led to him becoming quite depressed, and he had recently agreed to start antidepressant therapy. She concluded that she thought it was ‘very unlikely’ that he would ever be able to resume his previous work.

[54]The claimant’s main request to UPP3 was for a rereferral for ill health retirement.

[55]Paragraph 17 of PNB Circular 10/4 states that where there is a request to re-open a case, the police authority should refer the issue again to the SMP only where the Force Medical Officer (Dr Ryan in this case) ‘considers there - 9 - is fresh evidence which could lead to a substantive revision of the previous decision.’

[56]PC Davies, the claimant’s representative, said they felt the threshold for ill health retirement had been met and that the PMAB comprised clinicians who tried to cure the officer rather than consider whether he was fit for duties of a police officer. The claimant had tried a number of their suggestions without success. His current pain management specialist said little could be done and his condition was very unlikely to improve. PC Davies said the claimant had spoken to Dr Ryan on a referral to assess his suitability to attend this UPP3 meeting. She said the claimant had also contacted Dr Ryan since and had requested that ill health retirement be considered again but had been declined.

[57]The UPP3 panel took this to mean that Dr Ryan had formed a view that there was no fresh evidence and had refused to rerefer to the PPA. The claimant told the tribunal that Dr Ryan was simply talking about the procedural route open to the claimant. He could not remember how much detail he went into about the allegedly fresh evidence. In any event, the UPP3 panel did apply their mind to whether there was fresh evidence and whether a rereferral via Dr Ryan should be made.

[58]The claimant’s request for rereferral was on grounds that he had tried virtually all the suggested medications and they had not helped. He said that if anything, his pain had got worse until he reverted to previous medications. He had tried the CGRP injections and these were unsuccessful. The only medication he had been unable to try was the oral version of CGRP, which might not be suitable because of his hypertension. The only other outstanding thing was a pain management programme. He had not been able to start one yet because he was currently receiving counselling / psychotherapy on the NHS (I Talk). He had to finish that first. He had had 3 sessions so far and was likely to have 15 – 16 sessions, at which point – say end of June - he could then apply for the pain management programme. The referral onto the programme could take several months and he did not know how long the course was. He did not however feel anything was likely to cure him. He had been through private and NHS options. He had tried everything.

[59]Mr Murphy asked the claimant to explain what was the change in his medical condition. The two medical letters suggested that he was in a steady state of not improving. The claimant said that he had come off the amitriptyline, gone on to baclofen and trialled the CRGP injections. He said towards the end of last year, the level of pain and frequency of his headaches were much worse. Going back on the amitriptyline this year had helped.

[60]He also wanted to add something new on the mental health side of things which he had not brought up before. This was that at the end of 2022 his GP had referred him to the Mental Health Crisis Team because he had taken an overdose of his medication. He had not mentioned this before because he did not feel comfortable talking about it. - 10 -

[61]Mr Murphy took pains to clarify with the claimant whether the PMAB had access to his medical records and what they said about mental health. The claimant said he first reported mental health difficulties to his doctor in December 2022. He also said he did not put any new information to the PMAB and that the PMAB reviewed the records which were before the SMP.

[62]The UPP3 panel decided to dismiss the claimant and not to refer him again for consideration of ill health retirement. The doctors were clearly saying that the claimant was not currently fit to return to work and the UPP3 panel felt that the claimant would be unable to return to work within a reasonable time frame. The claimant had said during the UPP3 meeting that even if he were offered reasonable adjustments, he would ‘hope’ he could return but was not sure. Reduction in rank or redeployment were not options given that the claimant could not return to work.

[63]The panel were concerned about the continuing effect of the claimant being off work. The claimant had been off for a long time. Although there was no salary cost to speak of, there was still line management time and responsibility. There was no possibility of any locum replacement. Other staff in the Community Safety Unit had to cover the claimant. He could not be replaced as long as he was still employed there. Over the last 5 – 6 years, the organisation had been in a very substantial state of flux and change, and it could not sustain an operational police officer role which could not be filled. The respondent had to use its resources effectively. Community Safety Units around the country were considered a priority. .

[64]As regards the request for a new ill health retirement assessment, that was based on the claimant’s personal decision not to tell the PMAB the full extent of his mental ill health. He had also not taken up the opportunity to write to the PMAB after its decision. The previous ill health retirement assessment and appeal had been thorough. The PMAB would have had access to the December 2022 medical records.

[65]I would add here that I am not at all sure that the PMAB did have the GP’s December 2022 records. The claimant confirms he did not show the PMAB the Mental Health Crisis Team letter.

[66]Overall, the panel did not think sufficient had changed to warrant referring back to Dr Ryan to consider whether there should be a further ill health retirement referral. In any event, the panel understood from what the claimant’s representative said early in the meeting that Dr Ryan had already told the claimant he would not rerefer. The panel was mainly focused on exploring whether there was a way to make adjustments to enable the claimant to return to work. The respondent has many officers on restricted duties who can still do really valuable work. Unfortunately that was not a realistic option with the claimant. Law - 11 -

Law

[67]As well as the below, I also took account of the parties’ written legal submissions. Discrimination arising from disability

[68]Section 15 of the Equality Act 2010 prohibits discrimination arising from disability. This occurs if the respondent treated the claimant unfavourably because of something arising in consequence of the claimant’s disability. The respondent has a defence if it can show such treatment was a proportionate means of achieving a legitimate aim.

[69]The tribunal must decide(1) whether the claimant was treated unfavourably and by whom;

(2) what caused that treatment — focusing on the reason in the mind of the alleged discriminator (consciously or unconsciously);

(3) whether the reason was ‘something arising in consequence of the claimant’s disability’. This only needs to be a loose connection and might involve a number of causal links. At this stage, it is an objective question which does not depend on the thought processes of the alleged discriminator. (Pnaiser v NHS England and anor

[2016] IRLR 170

)

[70]The ’something, must be more than a trivial part of the reason for the unfavourable treatment. (Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

, EAT.)

[71]In Williams v Trustees of Swansea University Pension and Assurance Scheme

[2018] UKSC 65

, Mr Williams had successfully applied for ill health retirement. At the time of his retirement, he had had his hours reduced as a reasonable adjustment to help him cope with his disabilities. That meant he had a lower pension than otherwise because it was calculated by reference to his part-time salary. He brought a s15 claim. The Supreme Court said this was not unfavourable treatment. Mr Williams was only entitled to a pension at all because of his disabilities. The treatment here was awarding Mr Williams a pension and that was obviously not unfavourable treatment because he would not have been given a pension at all had he not been disabled. It would then be artificial to say that giving him a lower pension than otherwise was unfavourable treatment. If he had been able to work full-time, he would not have had an enhanced pension entitlement; he would not have been entitled to a pension at all.

[72]Regarding the justification defence, a critical evaluation of the evidence is required, weighing the needs of the employer against the discriminatory impact on the employee. This involves weighing the needs of the employer against the discriminatory impact on the employee. The tribunal must carry out its own assessment on this matter, as opposed to simply asking what may fall within the band of reasonable responses. (Gray v University of Portsmouth; Hardy & Hansons plc v Lax

[2005] ICR 1565

[73]Where sickness absence is ‘the something arising in consequence of’ the claimant’s disability, the impact on the employer of the continuing long-term absence must be shown to be ‘a significant element in the balance that - 12 - determines the point at which [the] dismissal becomes justified’. Often, it will be so obvious that the impact is very severe that a general statement to that effect will suffice. However, sometimes it will be less evident, and the employer will need to give more particularised evidence of the difficulty caused by the absence.

[74]The duty to make reasonable adjustments is set out in sections 20 – 21 of the Equality Act 2010 and in Schedule 8. Where a provision, criterion or practice applied by the employer or a physical feature of the premises or a lack of an auxiliary aid puts a disabled person at a substantial disadvantage in comparison with people who are not disabled, the employer must take such steps as it is reasonable to have to take to avoid the disadvantage or provide the auxiliary aid. Substantial’ means more than minor or trivial (EqA s212(1)).

[75]In Tameside Hospitals NHS Foundation Trust v Mylott

UKEAT/0325/09

, it was claimed that failure to consider ill health retirement was a failure to make a reasonable adjustment. The EAT said ‘the whole concept of an adjustment seems to us to involve a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation or being unable to do so.’ Burden of proof under Equality Act 2010

[76]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision. Conclusions Discrimination arising from disability

Conclusions

[77]In the agreed List of Issues the claimant characterised the unfavourable treatment as being ‘dismissed as opposed to being offered ill health retirement’. We discussed whether the ‘treatment’ should be taken as expressed in the List of Issues or whether it should be analysed separately in two parts as ‘the dismissal’ and ‘the failure to offer / refer for ill health retirement’.

[78]On balance, I think it should be as expressed as in the List of Issues. This is because the claimant is not complaining of the dismissal per se. He is not suggesting he should have been kept on with reasonable adjustments. He is saying that the respondent should have rereferred him for ill health retirement instead.

[79]It became clear early in the hearing that the claimant was not arguing that the respondent through the UPP3 panel should have granted him ill health - 13 - retirement immediately, despite the lack of finding by the SMP and PMAB that his disability was permanent. The respondent stated and I accept that the UPP3 panel did not have power to do that under the Pension Regulations. The claimant did not argue otherwise. The claimant’s case was that the UPP3 panel should have referred him again f r ill health retirement because of the ‘fresh evidence’ which he produced at the UPP3 hearing. I think this different way of putting the case is sufficiently encompassed within the wording of the List of Issues. The Claim form is not clear either way, but the respondent cannot have been surprised because it is the central argument made to them at the UPP3 hearing and Mr Murphy addressed it in his witness statement and oral evidence.

[80]I will now apply the stages of the legal definition under s15.

[81]As I have said, the ‘treatment’ was dismissing the claimant rather than granting him ill health retirement or rereferring him for consideration of ill health retirement.

[82]The next question is whether such treatment was ‘unfavourable’. The respondent says it cannot as a matter of law be ‘unfavourable’ because of Williams and because granting an ill health retirement pension is favourable treatment available to the claimant only if he was disabled

[83]The facts of Williams are not completely comparable, because that case was about the terms of a pension which were only available to Mr Williams in the first place because he was disabled. Nevertheless, a comparable point arises in Mr Lester’s case: the unfavourable treatment he is complaining of is not being offered a benefit to which he would only be entitled as a disabled person. The claim would therefore f il on this ground alone. However, in case I am wrong about that, I will go on to consider the remaining stages of the s15 definition.

[84]The next question, if the treatment was unfavourable, is whether it was because of something arising in consequence of the claimant’s disability. The reason for dismissing the claimant as opposed to granting him ill health retirement was because the PPA had assessed the claimant as not permanently disabled. The UPP3 panel could not go behind that finding. The question is more about whether the respondent should have rereferred.

[85]The reason the UPP3 panel did not rerefer for ill health retirement was that a decision had been made and because there was no notable fresh evidence. This reason was to do with how long the disability would be likely to last. I think it is a stretch to say that how long a disability might last is something arising from that disability. However, it is not unarguable and I reach no conclusive view on this. I will go on to consider whether such treatment would in any event have been justifiable.

[86]The respondent’s aim in dismissing rather than rereferring for ill health retirement was to make a good use of resources and public funds. It had been prepared to look at reasonable adjustments, but as realistically none - 14 - were likely to work, the aim was to be able to terminate the claimant’s employment at this point so that a new officer could be recruited for the CSU, which it considered an important unit. The aim was to ensure this operational role was filled. At a secondary level and in that context, the aim was to save line management time and responsibility, given there was no prospect of the claimant returning in the forseeable future.

[87]The respondent could not go ahead and immediately grant a pension because it did not have power to do so given the PPA findings. To rerefer and start the whole process again would have taken time with no great prospect of succeeding in a different outcome for the claimant. The claimant had still not carried out the pain management course. The respondent was faced with a situation whereby the claimant was not realistically coming back to work anyway and it needed to move on and replace him.

[88]I believe these were the respondent’s genuine and legitimate aims. Although I was not given chapter and verse regarding staff numbers and problems caused, the claimant did not in cross-examination challenge this evidence. I think it is obvious that prolonged absence without scope for replacement in a priority type of unit will cause difficulties.

[89]I have then considered whether dismissal rather than rereferring was proportionate to the aims. Looking first at the impact on the claimant, on the one hand it was very serious because he would be losing his job. On the other hand, he had been off work for 3 years anyway; he had had difficulty sustaining attendance prior to that, and he was doubtful whether any reasonable adjustments would enable him ever to return. Financially, the claimant’s primary pay had already been exhausted and he was only getting a few £100/month. He wanted to leave with an ill health retirement pension.

[90]The claimant says that his dismissal was not proportionate because a less discriminatory action would have been to refer him again for consideration of ill health retirement. He did not argue any other reason for it not being justified.

[91]As for the proportionality of referring the claimant again for ill health retirement assessment, the difficulty is the length of that process with a very uncertain result. The respondent had already accommodated the claimant being off work for 3 years. By the time a referral was made to and decided upon by Dr Ryan, then assessed by the SMP, then potentially assessed by the PMAB, and possibly a further UPP3 meeting, potentially another year could pass. Then either the result would be the same or the claimant would succeed. Either way, the respondent would not be getting its employee back, but the unit would have been short-staffed for potentially up to another year. So rereferring would not have been a different way of meeting the respondent’s aims.

[92]As part of this, I have also considered the claimant’s chances of getting a different decision from the PPA. - 15 -

[93]When considering whether it was proportionate not to refer for ill health retirement again, one of the factors is whether there was in fact fresh evidence. This is because under paragraph 17 of PNB Circular 10/4, where there is a request to re-open a case, it can only be done where the Force Medical Officer (Dr Ryan in this case) ‘considers there is fresh evidence which could lead to a substantive revision of the previous decision’.

[94]The claimant relies on the fact that he had tried baclofen and CGRP injections, ie the recommended medications; the oral version of CGRP might not be suitable for him because of his hypertension; the latest letter from Dr Aldington and his GP; and the fact that he had not told the PMAB about the December 2022 referral to the Mental Health Crisis Team because he had taken an overdose.

[95]In terms of the medication, in so far as the original decision was founded upon the fact that those medications could still be tried and might well work, there was fresh evidence in that the claimant had tried them and they did not work. The difficulty is that that was not the only basis of the original decision. The decision in regard to migraine was that even as matters stood, it was not sufficiently severe to be permanently disabling because the claimant had said if he had something to do, he would often continue through the headache. Moreover that the majority of individuals with chronic migraine are able to undertake full-time employment. If there was a misunderstanding, and the claimant was talking about his non-migrainous headaches, he should have corrected it at the time.

[96]There is also the problem that the claimant had not yet attended a pain management course which was the key intervention envisaged by the SMP and PMAB in relation to chronic pain. It would be some time before he could attend such a course.

[97]There was no notable evidence that the claimant’s condition had physically worsened since the last assessment, except for a period when he tried the recommended medications and some reduced effectiveness of certain injections. None of this would have been significant enough to amount to fresh evidence.

[98]In conclusion, when weighing up proportionality, there was no powerful fresh evidence which suggested itself and was likely to make any difference. Yes, the claimant had tried the two recommended medications without success, but he had not yet undertaken the key pain management course. The apparent misunderstanding about working through a headache could and should have been corrected at the time. The December 2022 mental health crisis could also have been raised at the PMAB. Although I understand why the claimant was reluctant to do so, in this context, the assessment process cannot work well if individuals hold back medical information or do not correct a misunderstanding and then seek a fresh referral later on those bases.

[99]I also bear in mind on proportionality that what the claimant was aiming for was not to retain his job, but beneficial terms on leaving his job. - 16 -

[100]The UPP3 panel was open to exploring reasonable adjustments but the claimant had little hope that any would succeed.

[101]For this reason too, the section 15 claim fails.

[102]If I analysed the claim differently and broke down the alleged unlawful treatment into two parts, ie the dismissal and the failure to rerefer, there may not be the same difficulty in proving that dismissal was because of something arising from disability. However, the s15 claim would still fail because I would still consider that the respondent had proved the treatment was justified.

[103]The only reasonable adjustment which the claimant is claiming is terminating his employment by ill health retirement or rereferring him for reconsideration of whether his employment could be terminated by way of ill health retirement.

[104]It is not necessary for me to get into the other stages of the definition of failure to make reasonable adjustments. The difficulty here is the case law about what can be a reasonable adjustment. There are several cases in different contexts which generally establish that the purpose of reasonable adjustments is to enable a worker to work. The EAT in Tameside Hospitals NHS Foundation Trust v Mylott stated that the concept of reasonable adjustments did not extend to compensation for being unable to work including failure to consider ill health retirement.

[105]The claim for failure to make reasonable adjustments therefore fails. Final comments

[106]I am conscious that the claimant is clearly disabled and not a well person at the present time. I am also conscious that he has tried a large number of treatments and that his own doctors believe that he will not be capable of carrying out the duties of a police officer before retirement age. However, the claimant had to go through the PPA process. In that process, independent doctors, including relevant specialists, had a different opinion. It is nearly 20 years until the claimant’s retirement age and the SMP and PMAB doctors believed that with the correct type of pain management course in particular, the claimant will substantially improve. I do hope that the claimant can see this as a cause for optimism. From the way he conducted himself in the tribunal hearing, he is clearly an intelligent, capable and honest man who I hope can find a fulfilling alternative career.