MR B AITKEN v THE COMMISSIONER OF POLICE OF THE METROPOLIS [2010] UKEAT 0226_09_2106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0226_09_2106Case No Appeal No. UKEAT/0226/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B AITKENAPPELLANTTHE COMMISSIONER OF POLICE OF THE METROPOLISRESPONDENT
Before
Mrs Justice SladeDate 21 June 2010
[1]APPEARANCES For the Appellant MS SALLY ROBERTSON (of Counsel) Instructed by: Russell Jones and Walker 50-52 Chancery Lane London WC2A 1HL For the Respondent MR DIJEN BASU (of Counsel) Instructed by: Metropolitan Police Service (Legal Services) New Scotland Yard 8-10 Broadway London SW1H OBG SUMMARY DISABILITY DISCRIMINATION Direct disability discrimination Reasonable adjustments The Employment Tribunal rejected the Appellant's contention that the reason for his treatment by the Respondent of which he complained was a perception that he had a dangerous mental illness. Any argument that action taken on grounds of a perception of mental illness is for a reason relating to or on grounds of disability within the meaning of the Disability Discrimination Act 1975 is therefore academic in this appeal. In any event on the current state of the law, conduct of which complaint is made under DDA must be for a reason relating to or on grounds of actual not perceived disability. Coleman v Attridge Law [2008] ICR 1128 , EBR Attridge LLP v Coleman [2010] ICR 242 and English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 considered. An argument that bad behaviour was so much part and parcel of the Appellant's disability that treatment because of such behaviour was unlawful discrimination was not in the ET and would have required relevant findings of fact. In making the statutory comparison for determining whether there has been less favourable treatment the bad behaviour is not to be 'stripped out'. London Borough of Lewisham v Malcolm [2008] IRLR 700 applied. The appeal from the dismissal of disability discrimination claims dismissed. In assessing the reasonableness of the adjustment the Employment Tribunal was entitled to have regard to the need that a police officer should not appear to present a danger to colleagues or to the public. The appeal from the dismissal of reasonable adjustments claims also dismissed. THE HONOURABLE MRS JUSTICE SLADE The Appellant appeals from the dismissal by an Employment Tribunal ('ET') in its judgment registered on 23 February 2009 ('ET Judgment') of his claims under the Disability Discrimination Act 2005 as amended ('DDA') of direct disability discrimination, disability related discrimination and failure to make reasonable adjustments. Following a preliminary hearing before HH Judge McMullen QC and members on 14 September 2009 three grounds of appeal were to proceed to a full hearing. Unless otherwise indicated references below to paragraphs are to those in the ET judgment.[2]At the heart of this appeal is the question whether the Appellant's behaviour was so closely connected with his disability that it should be considered part and parcel of that disability. The answer to this question is material to the first ground of appeal in which it is said that the Employment Tribunal ('ET') erred in law by excluding discrimination contrary to Sections 3A(1) and 3A(5) read together with Section 4 of the DDA as amended ('DDA') on grounds of perceived disability when considering 'the reason why' the Respondent acted as he did towards the Appellant in the respects challenged. The answer to the question is also material to the second ground of appeal in which it is said that the ET erred in deciding upon the characteristics of the appropriate hypothetical comparator for the purpose of Sections 3A(1) and (5) by implicitly including disability and/or perceived disability for both the Appellant and the comparator when deciding whether he has been treated less favourably than a comparator. As for the appeal regarding reasonable adjustments, it is said that the ET misdirected itself by impermissibly taking into account the perceived risk which the Appellant posed rather than deciding upon adjustments in the light of the finding that the Appellant posed 'no danger'. Grounds of Appeal[3]Ground 1: Perceived disability(1) The ET misdirected itself in law by excluding discrimination on grounds of perceived disability when considering Sections 3A(1) and 3A(5) read with Section 4 of the DDA.(2) Further or alternatively failed to give adequate reasons for its decision given the Appellant's submissions that the Respondent's actions were based on its perception of risk (mental illness involving a potential threat to others) i.e. perceived disability in light of its finding that 'as a matter of fact PC Aitken is not a danger to members of the public, female colleagues, or anyone else for that matter….', and its findings in relation to the fear he engendered in others.[4]Ground 2: The comparison required (3) The ET misdirected itself in its construction of the hypothetical comparator and in the comparison required for the purposes of DDA Sections 3A(1) and (5) DDA by implicitly excluding disability and/or perceived disability or perceptions of dangerousness, on both sides of the comparison by failing to exclude such protected characteristic when making the comparison. (4) The ET gave inadequate reasons and/or findings of fact to deal with the Appellant's case that the less favourable treatment lay in the Respondent's failure to resolve or close the Christmas 2005 social event incident and/or be satisfied as to its underlying causes. Without the fear of a 'dangerous' mental illness all matters relevant to decision-making in relation to that incident would have been explored and addressed. Had the comparator been given words of advice or disciplined, the matter would have been over.[5]Ground 3: Reasonable adjustments (5) The ET misdirected itself in considering the steps required by way of reasonable adjustments:(a) despite its finding of 'no danger' at paragraph 191, impermissibly taking account of discrimination on the basis of perceived disability;(b) failing to consider what steps were reasonably required in the light of its finding of 'no danger' at paragraph 191;(c) failing to consider what steps were reasonably required at and in the context of the material times (e.g. by switching from the 'restricted duties' context in which the Appellant was working and to which he sought to return, to that of full normal duties);(d) failing to address the imposition at those times of 'overzealous' adjustments (raised by the 4 th , 5 th and 6 th adjustments). These adjustments were:
'9(iv) Failing to pursue, adequately and/or reasonably recommendations made by the psychiatrist; 9(v) Refusing to allow the Claimant to return to work in January 2007; 9(vi) Refusing or failing, from January 2007, to place the Claimant back in the VIIDO role or into a similar role that was suitable.'
[6]During the hearing of this appeal the argument advanced by Miss Robertson on behalf of the Appellant developed so that in her submissions in reply to Mr Basu on behalf of the Respondent she said that on reflection she did not need to rely on perceived disability because the physical signs which gave rise to the argument on perceived disability were part and parcel of the Appellant's disability. Summary Relevant Facts[7]This summary is taken from the findings of fact in the ET Judgment.[8]The Appellant is a police constable based in the London Borough of Southwark. He became a probationary police constable on 12 August 2002 and was confirmed as a police officer on 7 May 2004. From the outset of his employment with the Respondent he had intermittent absences for minor ailments and on 15 March 2005 he was referred to the Respondent's Occupational Health department who thought him to be fit for full operational duties. On 28 June 2005 he commenced a continuous period of sick leave for depression. The period of absence ended on 3 November 2005. The Appellant received six counselling sessions. A gastroenterologist diagnosed a tendency to binge drink.[9]The Appellant was given a programme of phased return to work. He was referred to the Employee Assistance Programme and was given eight Cognitive Behavioural Therapy ('CBT') sessions. His therapist diagnosed Obsessive Compulsive Disorder ('OCD').[10]On 14 December 2005 the Appellant attended a Christmas party for the Crime Management Unit (CMU) which was shared with the Telephone Investigation Bureau. About fifteen people attended a lunch at an Italian restaurant and then the party continued in various pubs. The Appellant drank four double vodkas with mixers and continued to drink pints of beer. He was taking Prozac and had eaten very little that day.[11]The Appellant made a suggestive remark to a woman police sergeant which shocked and offended her. He was intimidating and aggressive. He told another officer, who he did not know, that he thought his GP was trying to get him out of a job and was plotting against him as was his therapist. He said he had strange thoughts such as 'beating his girlfriend's head in with a baseball bat'. He became extremely angry and aggressive intermittently. When a female officer left he stated that he wanted to punch her and break her nose.[12]Other incidents occurred on 14 December 2005 including the Appellant squeezing the hand of a colleague to the point of painfulness. He grabbed another colleague by the left arm and put him in a 'goose neck' position which can cause great pain.[13]These incidents will be referred to collectively as the 'Christmas Social'.[14]At paragraph 21 the ET recorded of the Christmas Social that:
'During the course of the afternoon the Claimant's colleagues felt extremely uncomfortable and perceived the Claimant to have mental health problems that scared them. It came to the point that his behaviour was inappropriate aggressive and threatening to the extent that they felt unable to continue the festivities.'
[15]The Appellant's behaviour was reported. He had little recollection of the Christmas Social. People present at the party were concerned that he should receive appropriate help and, if necessary, treatment.[16]A superintendent considered a report made after an investigation into the Appellant's behaviour at the Christmas Social. On 20 December 2005 he recommended to the Borough Commander that the Appellant receive words of advice. The basis for his recommendation that no further action be taken beyond words of advice was that it appeared that his behaviour was linked to illness, he had no history of other misconduct and reference to Occupational Health was in hand. The Appellant was put on special leave.[17]The Appellant was seen on 3 January 2006 by a Consultant Occupational Health Physician, Dr Fletcher. In her report of 12 January 2006 she expressed the view that the Appellant might be fit to return to work but would need a good risk assessment, avoiding any work with the public and needed good close management supervision.[18]On 5 January a decision was taken to move the Appellant to the Beat Crimes Unit to assist with office management, telephone enquiries and administration duties. It was arranged that the Appellant would return to work on 23 January 2006.[19]On 26 January 2006 the Appellant saw Dr Oxlade, Consultant Psychiatrist. It was noted that the Appellant must remain alcohol and caffeine free to stop some of his aggressive verbal and behavioural problems. Dr Oxlade did not consider he was actually dangerous 'though he is clearly quite blunt speaking and careless of causing offence, probably when intoxicated'. As regards work, Dr Oxlade's view was that the Appellant should probably have his hours extended.[20]There followed further medical appointments and assessments. On 10 February 2006 Dr Fletcher assessed the Appellant as fit for restricted duties only but fit for full time hours and fit for an office based role involving no public contact.[21]On his return to work on 17 February 2006 the Appellant had a chat with DI Willis who the ET found to have been a careful and caring manager. Several times during the discussion the Appellant appeared to momentarily lose control in the sense that he became flushed, clenched his fists and moved his arms up and down as an expression of his frustration. DI Willis was so concerned about his behaviour that he sent him home.[22]In March 2006 the Appellant's ex-girlfriend contacted her local police station to report that on 4 March 2006 the Appellant had telephoned her approximately 20 times and had been abusive. It emerged that the Appellant may have been drinking heavily. He was warned about his future conduct.[23]On 17 March 2006 the Appellant received formal words of advice following the events at the Christmas Social.[24]On 13 April 2006 Dr Fletcher, Superintendent Vincent and a member of the HR department held a case review meeting about the Appellant[25]Dr Fletcher met the Appellant on 18 April 2006. She found him to be extremely agitated and apparently having difficulty in controlling his anger. She felt anxious for her personal safety.[26]Dr Fletcher was aware from January 2006 of the diagnosis of OCD and 'in vague terms of the NICE (National Institute for Clinical Excellence) guidelines, but had not studied these'. The ET noted that the guidelines advise:
'if healthcare professionals are uncertain about the risks associated with intrusive sexual, aggressive or death related thoughts reported by people with OCD, they should consult mental health professionals with specific expertise in the assessment and management of OCD. These things are common in people with OCD at any age, and are often misinterpreted as indicating risk.'
[27]Dr Fletcher was not confident that Dr Oxlade's view that the Appellant was not actually dangerous correctly represented his current condition. The overall Chief Medical Officer of the Respondent, Dr Cahill-Canning, referred the Appellant to a Consultant Forensic Psychiatrist, Dr Balakrishna. Dr Balakrishna was not an OCD specialist.[28]In response to the questions in his letter of instruction from the Respondent Dr Balakrishna stated his concern that the Appellant's mental health problems indicated that he was not suited to the job of a frontline police officer. However he did not believe that the Appellant presented a specific risk to working in an office based role with women generally.[29]Dr Cahill-Canning had a conference call with Superintendent Vincent and with two others including a senior HR manager. The ET record at paragraph 69 that:
'She explained that the Appellant had a serious medical condition and was not suited to the role of police officer. She also said that PC Aitken would need to be very supervised and continually risk assessed over the course of the next few weeks until the matter reached to conclusion.'
[30]Dr Cahill-Canning met the Appellant on 29 June 2006. She told him that Dr Balakrishna did not consider him suited to frontline policing and that it would be the prerogative of management to decide wider issues in relation to his deployment as a police constable. She also told him that she expected that ill health early retirement would be considered.[31]Superintendent Vincent decided that the Appellant should be moved to the Visual Images and Identification Office (VIIDO). This was a new role in a permanent unit dealing with CCTV-based investigations. The Appellant started working in the unit on 4 September 2006. Superintendent Vincent undertook a risk assessment of the Appellant and decided that the best option was for the Appellant to continue his deployment with the CCTV unit whilst under the direct supervision of the unit sergeant with close assessment.[32]From 19 September following the risk assessment and advice from Dr Fletcher, the Appellant no longer had contact with the public. His role would normally have involved such contact.[33]The Appellant was off sick from 12 October 2006 with gastric intestinal problems (an anal fistula). He was due to return to work in January 2007. Superintendent Vincent wanted to find a productive role for the Appellant which would include duties outside the police station. However in the light of HR advice he felt that he had no alternative but to place the Appellant on sick leave as he was told that his proposal went against all medical advice.[34]The Appellant has not returned to work since 12 October 2006. Medical certificates have been supplied since that date. He had indicated a wish to return to work in January 2007.[35]The Borough Commander considered that medical retirement was the way forward. He met the Appellant on 30 January 2007. The Appellant agreed that his sick record was appalling. The ET found at paragraph 97 that Chief Superintendent Tillyer, the Borough Commander for Southwark Borough:
'..accepted that the duty of reasonable adjustments arose and that PC Aitken would meet the definition of disability under the DDA 1995, but that the nature of the restrictions being placed upon him of having no direct contact with the public either in person [or] on the phone meant that it would not be reasonable to find such a role.'
[36]The Selected Medical Practitioner assessed the Appellant for medical retirement. He recorded the Appellant's disability as OCD and alcohol abuse (binge drinking) and an unpredictable aggressive attitude. He considered that the OCD was likely to be permanent and that he was disabled from performing the ordinary duties of a member of the Police Force. However he considered that the Appellant could probably manage to perform full time office based role with minimal customer contact provided certain limitations were taken into account.[37]The Respondent decided to retire the Appellant on medical grounds. He appealed this decision.[38]The Appellant presented his first ET1 in September 2007.[39]The Appellant's appeal from the decision to medically retire him took place on 5 March 2008. The Medical Appeal Board allowed his appeal. On balance the Board took the view that the probability was that the Appellant would recover sufficiently to be able to carry out normal duties of a Police Officer including all the core duties required. Their decision was sent to both parties on 19 March 2008.[40]The Appellant's CBT sessions ended. Following an appointment with the Appellant on 11 April 2008 Dr Fletcher concluded that he still had significant symptoms and was unfit to return to work. Dr Fletcher did not consider that paying for private CBT sessions constituted a reasonable adjustment for a disabled officer.[41]At a further occupational health appointment on 28 July 2008 between the Appellant, a Police Federation representative and Dr Fletcher he agreed to be referred to Dr Broadhead, a Consultant Psychiatrist.[42]The Appellant lodged his second ET1 on 7 August 2008.[43]On 1 September 2008 the Appellant was seen by a consultant psychiatrist Dr Lelliott who noted a number of worrying symptoms.[44]On 19 September 2008 Dr Broadhead saw the Appellant for two hours and produced a report dated 25 September 2008. Dr Broadhead was of the opinion that the Appellant had multiple psychiatric conditions including OCD. He noted the effects of these. In paragraph 139 the ET state of Dr Broadhead's report: 'He continues: 'However, as reported by the Tribunal [Medical Appeal Board following ill health retirement decision] there is no evidence of any dangerous behaviour ever having been exhibited by him towards anyone: friends, colleagues or the public. He has no formal forensic history. His current girlfriend describes no history of intimidating behaviour towards her and perceives him as gentle. He strongly denies ever having wished to harm anyone.'[45]Dr Broadhead recommended that the Appellant see a therapist expert in CBT treatment especially for OCD including social anxiety. The ET found at paragraph 142:
'Dr Broadhead concludes that he does not see PC Aitken as being fit to return at this point. A cost of private psychiatric services would be in the order of £120 per weekly session and a psychiatrist of £150 to £200 per monthly consultation.'
[46]At paragraph 153 the ET held that the Appellant:
'is disabled within the meaning of the DDA on account of his OCD, bowel and digestive problems, depression and anxiety including an element of agoraphobia'
. Grounds of Appeal Ground 1: Perceived disability[47]Miss Robertson contended that the ET erred in failing to excluding discrimination on grounds of perceived disability contrary to DDA Sections 3A(1) or 3A(5) when considering the reason for the Appellant's treatment. Another way in which Miss Robertson put the argument was that the ET erred in failing to treat the behaviour of the Appellant as so closely connected to his disability that it should have been regarded as the disability. Accordingly if the reason for the treatment complained of was the Appellant's behaviour, the treatment was for a reason which related to his disability. Further it is said that the ET failed to give adequate reasons for its decision.[48]The error of law asserted was relied upon to challenge the approach and conclusions of the ET in determining Issues 9(i) and 9(viii) on the final schedule of issues before the ET. The following were included as constituting direct disability discrimination:
'9(i) The Respondent's handling of the Christmas 2005 social event incident and by continued references to, and use of, the incident in relation to the Claimant's medical retirement. 9(viii) Acting on the basis of assumptions made about mental illness and the nature of the Claimant's OCD condition without objective appropriate medical evidence, and thereby stereotyping the Claimant and/his (sic) condition, and, if so in what respect.'
In support of this ground of appeal Miss Robertson relied on parity of reasoning with Coleman v Attridge Law [2008] ICR 1128 . As is well known, in that case the ECJ held that less favourable treatment of the claimant on the grounds of her child's disability is contrary to Article 2(2)(a) of the Council Directive 2000/78 ('the Directive'). Reference is made in particular to paragraph 38 in which the European Court of

Justice held that:

'....the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.'
[49]Miss Robertson submitted that less favourable treatment on the ground or by reason of a fear belief perception or assumption that the worker has a type of mental illness or impairment that, in the event, he does not have, is prohibited by the Council Directive. As such, the DDA must be interpreted so far as possible in the light of the wording and purpose of the Directive. Miss Robertson said that she needed the help of the Directive to achieve this result.[50]The EAT, Underhill P and members, in HM Prison Service v Johnson [2007] IRLR 951 held at paragraph 63 that:
'... for the purposes of liability under the 1995 Act the disability to which the reason for the treatment complained of relates must be a disability from which the claimant is in fact suffering, so that in principle a reason for action relating to (believed) disability A is not caught if the employee is in fact suffering only from (different) disability B.'
Ms Robertson contended that the judgment of the Employment Appeal Tribunal in Johnson , is inconsistent with and is trumped by the judgment of the ECJ in Coleman .[51]Miss Robertson submitted that less favourable treatment on the ground or by reason of a fear, belief, perception or assumption that the worker has a type of mental illness or impairment that, in the event, he does not have, is prohibited by the Directive. The DDA must be interpreted as far as possible in the light of the wording and purpose of the Directive as was done in EBR Attridge Law LLP v Coleman [2010] ICR 242 paragraphs 13-14 and 16.[52]In challenging the conclusion of the ET on Issue 9(i), the Christmas Social, it was contended that the Respondent treated the Appellant less favourably than an appropriate hypothetical comparator by reason of a perception that he had a condition which 'could pose a danger to him or others' as referred to in paragraph 99 of the judgment. In paragraph 20 of her skeleton argument Miss Robertson formulated the less favourable treatment as follows:
'Although Mr Aitken was on the face of things treated better in that he was not disciplined but was given words of advice, the detriment, the less favourable treatment, lies in the reason for the 'fear of repetition'(a fear of 'dangerous' mental illness, and in Dr Fletcher's case her fear for her own personal safety- see para 58) and the consequent failure to resolve or close the incident [the behaviour at the 2005 Christmas party] and/or be satisfied as to its underlying causes which led to the Respondent returning to it and the fears generated by it time and again.'
It is said in paragraph 24 of the skeleton argument that: 'The grounds of or reason for the different treatment lies in the perception or fear of a 'dangerous' mental illness, not as the Respondent's Answer suggests 'about an erroneous perception that, as a man with a mental illness, he was dangerous'.[53]As for the challenge to the conclusion of the ET on Issue 9(viii), assumptions of mental illness, it was contended on behalf of the Appellant in the skeleton argument that a perception that the Appellant had a dangerous mental illness could not be reasonable in the absence of evidence establishing the existence of such an illness. Whether the perception that the Appellant had a dangerous mental illness was 'legitimate' or 'illegitimate' Miss Robertson contended that discrimination on grounds of such a perception is unlawful.[54]By the second part of the first ground of appeal it was contended that the ET failed to give adequate reasons for its decision in the light of the Appellant's submissions that the Respondent's actions were based on its perception of risk, in other words, perceived disability. This was not argued as a discrete point although reliance was placed on the finding of the ET at paragraph 191 that: '... as a matter of fact PC Aitken is not a danger to members of the public, female colleagues, or anyone else for that matter. ....'.[55]In her submissions in reply, Miss Robertson acknowledged that she did not need to rely on perceived disability in advancing her first ground of appeal as she contended that the physical signs which gave rise to the perception that he had a dangerous mental illness and on which she placed reliance were part and parcel of the Appellant's disability. Discrimination on those grounds would therefore be discrimination on grounds of disability.[56]Mr Basu on behalf of the Respondent submitted that the argument on perceived disability is not open to the Appellant on the findings of fact made by the ET.[57]Having considered the evidence, the ET held:
'192. We find that the Respondent did not act on the basis of assumptions about mental illness but they acted on the basis of how PC Aitken appeared to others. Unfortunately he gave the impression at times of having enormous difficulty in controlling his temper and, as we have seen at the Christmas social in 2005, scared his colleagues especially female colleagues.' 193. It is not therefore the case that the Respondent acted on the basis of assumptions about mental illness per se, it was about how the Claimant presented himself. This therefore does not meet the test of direct disability discrimination.'
[58]The conclusion in paragraph 193 was based on unchallenged findings of fact as to the appalling behaviour of the Appellant at the Christmas Social which at paragraph 171 the ET found to have constituted gross misconduct. The ET observed in that paragraph that there was a: 'strong possibility someone without the Claimant's particular disability would have been treated less favourably than he was and the disciplinary code applied more harshly to them'.[59]There is no appeal from the finding of fact that the reason for the treatment of the Appellant was not an assumption about mental illness.[60]Mr Basu contended that Coleman is not to the point. In that case the question referred to the ECJ was whether:
'the Directive only protects from direct discrimination and harassment persons who are themselves disabled.'
The question was referred to the ECJ by EJ Stacey who chaired the hearing of the Appellant's claims. The ECJ did not decide that persons who did not have but were perceived to have a disability were within the scope of the Directive.[61]Reliance was placed by Mr Basu on the judgment of the Court of Appeal in English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 . Lawrence Collins LJ (as he then was) who was in the majority dismissing the claimant's appeal, observed of language similar to that in the DDA section 3A(5) that in that Act the wording requires that the offending conduct must be for a reason which relates to an actual disability. Accordingly Mr Basu contended that action taken by an employer on the basis of incorrectly assumed disability would not be within the scope of the DDA. Discussion The relevant provisions of the DDA[62]1.— Meaning of "disability" and "disabled person".(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.(2) In this Act "disabled person" means a person who has a disability. 3A Meaning of "discrimination" (1) For the purposes of this Part, a person discriminates against a disabled person if– (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified. (2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person. … (5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person. 4 Employers: discrimination and harassment … (2) It is unlawful for an employer to discriminate against a disabled person whom he employs– … (e) by dismissing him, or subjecting him to any other detriment. The relevant provisions of Council Directive 2000/78 ('the Directive') Article 1 The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of ….disability …as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. Article 2 1. For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.[63]Miss Robertson challenged the conclusion that there was no disability discrimination in relation to two allegations considered by the ET. These were the way in which the Respondent dealt with the Appellant for his behaviour at the Christmas Social by not regarding the giving of words of advice as closing the incident. This was Issue 9(i) before the ET and was dealt with at paragraphs 167 to 171. The second challenge was to the conclusion of the ET on the allegation of discrimination by treatment of the Appellant on the basis of alleged assumptions about mental illness. This was Issue 9(viii) before the ET and was dealt with at paragraphs 188, 189-193 and 178-9 of the ET Judgement.[64]Issue 9(i) set out by the ET at paragraph 167 was whether: '9(i). The Respondent's handling of the Christmas 2005 social event incident by continued references to, and use of, the incident in relation to the Claimant's medical retirement ' was discrimination contrary to the DDA.[65]The ET found that the Appellant's behaviour at the Christmas 2005 social event was appalling. It held at paragraph 168:
'...We now know that his behaviour was on account of his OCD and we accept entirely what Dr Broadhead says which is that in fact his colleagues probably need not have feared. But fearful they were and we can understand why and objectively anyone in that situation would also have been fearful in the way that they were.'
[66]The ET held that the response of the Respondent to the event was mild in the extreme. At paragraph 170 the ET held:
'The continued references to and use of the incident in relation to the Claimant's medical retirement was on grounds of the seriousness of the incident itself and the Respondent's fear of repetition.'
[67]At paragraph 171 the ET concluded:
'Anyone else who did not have that particular disability who had behaved in like manner at a Christmas social, would have been treated no more favourably. Actually, there is a strong possibility that someone without the Claimant's particular disability would have been treated less favourably than he was and the disability code applied more harshly to them. We should perhaps be more explicit- his behaviour on that day constituted gross misconduct.'
[68]The complaint in the Notice of Appeal that the ET failed to deal with or to give reasons for rejecting the argument that the Respondent dealt with the Appellant less favourably than it would a comparator in relation to the Christmas 2005 incident was made in relation to Ground 2. In the paragraphs set out above the ET give reasons for its conclusion. The ET found that the reason the Respondent referred back to the incident was its seriousness and their fear of repetition of such behaviour.[69]Issue 9(viii) set out in paragraph 188 of the judgment was whether: '9(viii). –acting on the basis of assumptions about mental illness and the nature of the Claimant's OCD condition without objective appropriate medical evidence, and thereby stereotyping the Claimant and/or his condition.' was discrimination contrary to the DDA.[70]The ET understandably commented at paragraph 189 that the allegation was somewhat unparticularised and was based on the allegation that management and particularly the occupational health doctors, the CMO's, were consumed by hysteria about mental illness. The case for the Appellant before the ET on direct disability discrimination had been formulated in the first ET1 as follows: 'The Respondent has acted on the basis of assumptions about mental illness and the nature of obsessive-compulsive disorder itself and as experienced by the Claimant'.[71]At paragraphs 191-193 the ET held:
'191. Now we have said above that we are satisfied from Dr Broadhead's clear and comprehensive report that as a matter of fact PC Aitken is not a danger to members of the public, female colleagues or anyone else for that matter. We accept however that at the material time, reasonable people, such as Sarg. Shaw and including Dr Fletcher who is a qualified doctor, were scared by him, and whether their fear was justified knowing what we now know about the condition of OCD is off point. His behaviour was frightening. 192. We find that the Respondent did not act on the basis of assumptions about mental illness, but they acted on the basis of how PC Aitken appeared to others. Unfortunately he gave the impression at times of having enormous difficulty in controlling his temper and, as we have seen at the Christmas social in 2005, scared his colleagues especially female colleagues. 193. It is not therefore the case that the Respondent acted on the basis of assumptions about mental illness per se , it was about how the Claimant presented himself. This does not meet the test of direct disability discrimination.'
[72]We agree with Mr Basu that the First Ground of Appeal turns on a simple point. The ET expressly rejected the Appellant's contention that the reason or basis for the Respondent's actions in dealing with him was a perception that he had a dangerous mental illness. Any argument as to whether action taken on grounds of a perception of mental illness is direct discrimination within the meaning of the DDA is therefore academic in this appeal.[73]The ET made a clear and unchallenged finding of fact as to the reasons why the Respondent acted in the way complained of. In relation to issue 9(i) the ET held that reason for the continued reference to the Christmas Social was the seriousness of the incident and the fear of repetition. As for issue 9(viii), at paragraph 192 the ET held that the Respondent did not act on the basis of assumptions about mental illness but on the basis of how PC Aitken appeared to others. These findings were reached by an ET with an experienced Employment Judge after a hearing lasting ten days at which the parties benefited from the same representation as they had before us.[74]The ET did not fail to deal with the Appellant's submissions that the Respondent's actions were based on its perception that he was suffering from a mental illness which caused him to be a danger to himself and others. The necessary findings of fact carefully set out in the judgment fully support the finding of the ET as to the reason and basis for the actions taken by the Respondent in respect of which the Appellant complained. The complaint of inadequacy of reasons is therefore not made out.[75]In any event we do not accept the contention on behalf of the Appellant that in accordance with the judgment of the ECJ in Coleman , action taken on the basis of a mistaken perception that a claimant is suffering from a particular disability falls within the scope of the Directive. The Court in Coleman was concerned with the issue of whether the disability of another which is the basis of the discriminatory treatment of an employee is within the scope of the Directive. The ECJ ruled :
'…Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by article 2(2)(a)'
. The effect of the judgment of the ECJ on the interpretation of the DDA was explained by Underhill P in EBR Attridge Law LLP v Coleman in determining an appeal on the reference back to the ET. He held in Coleman that the DDA Section 3A(5) was to be modified to add the words 'or a person associated with a disabled person' after 'A person directly discriminates against a disabled person'.[76]The judgment of the EAT in HM Prison Service v Johnson [2007] IRLR 951 that:
'… for the purposes of liability under the 1995 Act the disability to which the reason for the treatment complained of relates must be a disability from which the claimant is in fact suffering, so that in principle a reason for action relating to (believed) disability A is not caught if the employee is in fact suffering only from (different) disability B.' is not inconsistent with or 'trumped' by the judgment of the ECJ in Coleman as was submitted by Miss Robertson. Lawrence Collins LJ in English v Thomas Sanderson Blinds Ltd [2009] ICR 543 observed at paragraph 49 that the words in DDA Sec 3B '… for a reason which relates to the disabled person's disability' are distinguishable from those used in other discrimination statutes which do not relate the relevant characteristic to the complainant. The DDA requires an actual disability, albeit that since Coleman the disability may be that of a person associated with the complainant. The language of DDA Section 3B is materially indistinguishable from that in Section 3A(1)(a). There would be no basis for adopting a different approach to the requirement that treatment be on the ground of an actual disability in construing Section 3A(5). As Underhill P observed in Coleman (No 2) the phrases 'by reason that' and 'on the ground of' are interchangeable in this field- see Nagarajan v London Regional Transport [1999] IRLR 572 at p 576. 77. The language of DDA Sections 3A(1) and (5) requires that the discrimination of which complaint is made be for a reason related to or on grounds of an actual particular disability (see also Sections 1 and 2(1)). Coleman was a case in which there was alleged discrimination on the grounds of a person's actual disability. The ECJ decided the Directive included discrimination on the grounds of the disability of a person associated with the person discriminated against. The ECJ did not rule that discrimination on grounds of perceived disability was within the scope of the Directive. Coleman does not 'trump'
Johnson. Accordingly the conduct of which complaint is made under DDA Sections 3A(1) or (5) must be for a reason relating to or on grounds of a disabled person's actual disability.[78]In our judgment the ET did not err in failing to hold that if it had concluded that the treatment of which complaint was made was for a reason relating to or on grounds of the Respondent's perception of the Appellant's disability such treatment would have been for a reason relating to or on grounds of disability within the meaning of DDA Section 3A(1) or (5). Even if the treatment of the Appellant of which complaint was made had been for a reason relating to or on the grounds of mistakenly perceived mental illness involving a potential threat to others, the ET would not have erred in failing to hold that such treatment was related to or on the ground of disability within the meaning of DDA Sections 3A(1) or (5).[79]The argument that the bad behaviour of the Appellant was so much part and parcel of his disability that action taken because of it should be regarded as taken on grounds of disability was not advanced before the ET or raised in the Notice of Appeal, skeleton argument or before the oral submissions made by Miss Robertson in Reply. Such an argument would have required an evidential base to establish what conduct was and what was not directly attributable to the Appellant's disabilities. Bad behaviour of the kind which the Appellant exhibited at the Christmas Social was not obviously necessarily attributable to his disability. Unfortunately persons who are not disabled can be guilty of such behaviour. Indeed one of the grounds upon which Miss Robertson relies in advancing the second ground of appeal is that the way in which the Respondent would have disciplined a non-disabled person who had been guilty of such misbehaviour would have been to deal with the individual and then regard the matter as closed. Further, the issue of whether the Respondent knew or ought to have known that such conduct was closely related to his disability would no doubt have been the subject of findings of fact if the case had been presented in this way before the ET. Even if the case had been presented in the way advanced by Miss Robertson in Reply, in our judgment on the material before it the ET did not err in failing to hold that action taken by the Respondent because of his bad behaviour was taken on grounds of his disability. Ground 2: The comparison required[80]Miss Robertson contended that:
'To strip out 'disability', actual or perceived, but include the substance of the signs and behaviour on both sides of the comparison is, it is submitted, illegitimate.'
She submitted that the ET erred in formulating the relevant circumstances in making the statutory comparison in stating at paragraph 179:
'… The relevant circumstances, including abilities would be appearing to be aggressive and potentially subject to uncontrollable anger and strong emotion, and to appear to be threatening to women'
. The ET erred in treating these characteristics as relevant circumstances to be included in constructing the hypothetical comparator as they were the consequence of the Appellant's disability. In this regard Miss Robertson relied on the findings at paragraph 191 that the Appellant was not in fact a danger to the public and at paragraph 168 in relation to his behaviour in the Christmas 2005 incident that 'We now know that his behaviour was on account of his OCD and we accept entirely what Dr Broadhead says which is that in fact his colleagues probably need not have feared.[81]Miss Robertson submitted that the behaviour of the Appellant at the Christmas Social was part of his disability. She distinguished the perceived signs of illness in this case from, for example, persistent lateness. She contended that the behaviour is relevant and should be 'stripped out' in making the comparison only where it is feared as part of perceived mental illness. Miss Robertson sought to distinguish London Borough of Lewisham v Malcolm [2008] IRLR 700 in which the House of Lords held that the Council had not discriminated against the schizophrenic Mr Malcolm contrary to the DDA in seeking possession of his flat when he sublet it in breach of the terms of his lease. In determining whether Mr Malcolm had been less favourably treated a comparison was made assuming that a comparator as well as Mr Malcolm had sublet premises. Miss Robertson suggested that the subletting which was the reason for the Council's possession action was nothing to do with Mr Malcolm's disability. By contrast the bad behaviour of the Appellant was now known to be related to his disability and so should not be included on either the Appellant's or the comparator's side of the equation in making a comparison for the purpose of determining whether he had been discriminated against contrary to the DDA. It was said that the ET erred in law in failing to exclude 'the protected characteristic', bad behaviour, when making the comparison.[82]Further, it was contended by Miss Robertson that the ET gave inadequate reasons and/or failed to make necessary findings of fact to deal with the Appellant's case that failing to regard his behaviour at the Christmas Social as closed once words of advice had been given or to be satisfied as to its underlying causes was less favourable treatment. It was suggested by Miss Robertson that without the fear of a dangerous mental illness, all matters relevant to the Respondent's decision-making in dealing with the Appellant would have been explored and addressed.[83]Mr Basu contended that the relevant comparison required the ET to strip out the Appellant's disability and determine how a person without it would have been treated. That other person would be one whose relevant circumstances were not materially different from those of the Appellant. The relevant circumstances consist of the behaviour of the Appellant on the various occasions described by the ET. In any event the approach contended for on behalf of the Appellant would be difficult if not impossible to apply in practice. Which behaviour would have to be 'stripped out' in making the comparison and which left in?[84]It is said that there is no proper basis for the contention that the ET had failed to deal with the argument on behalf of the Appellant that he had been treated less favourably than a comparator. Mr Basu submits that it is fanciful to suggest that a person without the Appellant's disability would have been treated more favourably. Such a person would have been treated more severely. Discussion[85]In making a comparison for the purpose of ascertaining whether a disabled person has been treated less favourably than a comparator for the purposes of the DDA, the disability is to be removed from the equation and the relevant circumstances of the comparator are to be the same as or not materially different from those of the disabled person.[86]It was not entirely clear whether Miss Robertson's oral submissions in Reply that the behaviour of the Appellant was so much part and parcel of his disability that her argument on perceived discrimination was not needed was directed to the First or the Second Ground of Appeal. Whether it applies to the issue of the reason for the action complained of (the first part of the First Ground) or the characteristics of the Appellant to be excluded in making the comparison (the first part of the Second Ground) in our judgment it fails to distinguish between a disability and its effects. For the reasons given in considering the First Ground of Appeal on the evidence in this case the ET did not err in failing to regard the behaviour of the Appellant which gave rise to a fear of violence as his disability.[87]Miss Robertson sought to distinguish Malcolm in which sub-letting was included as a relevant circumstance for the claimant and the comparator on the basis that sub-letting was not a consequence of Mr Malcolm's disability, his schizophrenia. With respect we disagree. In Malcolm the members of the House of Lords to whose judgment the point was material proceeded on the basis that the behaviour of subletting was causally connected to Mr Malcolm's schizophrenia. His mental condition may have led him to take imprudent decisions (see per Lord Scott at para 27). However, imprudent decision making was not treated as the disability although it was connected with it. So too in this case, the behaviour of the Appellant at the 2005 Christmas social was connected with his disability but is not to be regarded as the disability. The ET did not err in law in including bad behaviour as a relevant circumstance in making the comparison between how the Appellant was treated and how a comparator would have been treated.[88]Nor in our judgment can it be said that the ET failed to consider or decide whether the treatment of the Appellant in 'failing to resolve or close the Xmas social event was less favourable treatment'. The ET made findings as to whether the treatment of the Appellant was less favourable than that of a hypothetical comparator. Its findings at paragraphs 169 to 171 that such treatment was not less favourable were fully supported by the evidence and were not reached in error of law. Ground 3: Reasonable adjustments[89]Miss Robertson prefaced her submissions attacking the conclusions of the ET dismissing the claims alleging breach of the requirement to make reasonable adjustments by stating that the grounds of appeal on this point are interdependent and also raise perceived disability issues.[90]The first adjustment sought would require the Respondent to have established whether or not the Appellant was a risk to male and/or female colleagues and/or to members of the public so as to ensure that staff acted on the basis of knowledge not ignorance, assumptions or fear.[91]The second adjustment was 'if necessary, seeking the Claimant's permission to give sufficient details to eliminate ignorance, assumptions or fear'.[92]Adjustment four was to 'remove any requirement that the Claimant cannot work with women'.[93]The fifth adjustment was to 'remove any requirement that the Claimant must be accompanied in all circumstances'.[94]The sixth adjustment sought was that 'while he was awaiting or undergoing treatment and review, to provide an office based role with limited or controlled public contact, such as working VIIDO, borough intelligence unit, crime management unit, telephone investigation bureau, office manager, property department, or criminal justice unit'.[95]On behalf of the Appellant it was contended first that despite its finding in paragraph 191 of the judgment that he did not present a danger to members of the public, female colleagues or anyone else, the ET impermissibly took fear of danger into account in deciding whether the first, second, fourth and fifth adjustments sought were reasonable.[96]Miss Robertson relied on Watt v Ahsan [2008] ICR 82 to contend that the perception of others as to the danger presented by the Appellant could not be relied upon to justify not making an adjustment which would otherwise be reasonable.[97]Miss Robertson contended that the reasonableness of the adjustments sought should have been judged in the light of the finding at paragraph 191 that PC Aitken is not a danger. This observation in context is to be taken as meaning that he was not a danger throughout the period at issue. For example consideration of restrictions, such as not working with women, the subject of adjustment three, would inevitably be different if there was in fact no danger throughout the material period. It was contended on behalf of the Appellant that it is only if discrimination on grounds of perceived disability were permitted that such a restriction might be appropriate.[98]Secondly, with regard to adjustments two, four, five and six, Miss Robertson contended that the ET failed to consider what steps were reasonably required by way of adjustments at different points in time. Such requirements could be expected to fluctuate.[99]Thirdly, with regard to adjustments four, five, and six Miss Robertson contended that the adjustment required was their removal. Their imposition had been over zealous. Further and independently of that point, in light of the finding by the ET that the Appellant presented no danger, the adjustments were wrong and unnecessary at the time when they were imposed.[100]Finally, relying on Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 , Miss Robertson contended that the Respondent cannot rely on his lack of awareness at the time that the Appellant did not present a danger. In Tarbuck at paragraph 71 the EAT held that:
'The only question is, objectively, whether the employer has complied with his obligations or not.'
[101]Mr Basu contended that the ET did not misdirect itself in considering the steps required by way of reasonable adjustments on any of the four grounds set out in the Notice of Appeal and referred to above.[102]The fact that the Appellant presented as a risk as found by the ET at paragraph 199 of the judgment can create problems for an operational police officer. He or she has to deal with members of the public sometimes in difficult situations as well as with colleagues. He submitted that to ignore the appearance of a threat would be to ignore the most important feature of all.[103]In order to know that a person does not present a risk the appropriate medical information must be available. Mr Basu submitted that in order for a requirement to obtain certain medical information to be triggered the Respondent has to know that there might be a medical explanation for the bad behaviour at issue. He posed the question: how were they to know that there might be an explanation for the bad behaviour? He submitted that there was no suggestion that the Respondent should have realised the bad behaviour had a medical cause. Discussion[104]The DDA provides as follows: 4A Employers: duty to make adjustments (1) Where– (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.[105]At the heart of the contentions on behalf of the Appellant that the ET erred in failing to hold that the Respondent had not made reasonable adjustments of the nature claimed was that it failed to hold that despite the finding that the Appellant did not present a danger, restrictions on his work were imposed.[106]The ET decided that it was not a reasonable adjustment for the Respondent to have established whether the Appellant in fact posed a risk to members of the public and colleagues. At paragraph 199 the ET asked itself:
'to what extent would that step prevent the disadvantage to PC Aitken? The answer is not much because of the importance of the need for a serving police officer to appear not to be a risk to his colleagues and members of the public-it is about perception as well as the actuality of the situation. …. Unfortunately PC Aitken presents as a risk.'
[107]As can be seen from paragraph 135, Dr Broadhead's opinion upon which Miss Robertson places considerable reliance was contained in a report on 17 October 2008, well after the events at the 2005 Christmas social and other events giving the Respondent cause for concern. However we do not accept Mr Basu's submission that there was nothing to put the Respondent on notice that the Appellant's bad behaviour may have a medical cause which should have led them to have an expert medical assessment of the risk he posed. As early as the 2005 Christmas social the ET record at paragraph 23 that:
'PC Aiken's colleagues were very concerned about his mental health and his apparent instability and inability to contain aggressive tendencies.'
He also had a history of depression.[108]The ET record at paragraph 56 the NICE guidelines regarding OCD. The Respondent knew that the Appellant had been diagnosed with OCD (paragraph 13). However Dr Fletcher did not follow the guidelines and consult 'mental health professionals with specific expertise in the assessment of management of OCD.' Reference in the Guidelines was made to features including intrusive aggressive thoughts which 'are common in people with OCD at any age, and are often misinterpreted as indicating risk'.[109]However the basis of the appeal before us is that the ET erred in having regard to the appearance of risk presented by the Appellant in dismissing the reasonable adjustments claims rather than relying on the finding made by Dr Broadhead that in fact he presented no risk. There is no challenge to the dismissal of the claim based on the first adjustment, the requirement to establish whether the Appellant in fact posed a risk. Unless the conclusion of the ET on the first adjustment were challenged and it were established that on such an assessment not only was it likely that the Appellant would have been found to present no danger but also that means could be adopted to assist him to modify his behaviour so that he no longer appeared to pose a risk of danger, in our judgment the ET did not err in dismissing the reasonable adjustments claim. In assessing the reasonableness of the adjustments it was entitled to have regard to the need that a police officer should not appear to present a danger to colleagues or the public.[110]Accordingly all grounds of appeal are dismissed.