There has been another reported decision in the expanding area of s15 Equality Act 2010 Discrimination Arising from Disability, this time in the EAT case of Buchanan v The Commissioner of Police of the Metropolis.
In 2012, Finlay Buchanan, whilst serving as a police officer, suffered serious injuries in a motorcycle accident. As a result, he developed post-traumatic stress disorder so severe that by April 2013, he was disabled for the purposes of the Equality Act 2010.
After 8 months of sickness absence, the Police instigated its Unsatisfactory Performance Procedure (given the unfortunate acronym, “UPP”) derived from the Police (Performance) Regulations 2012.
The procedure was intended to address all levels of unsatisfactory absence from work, from incapacity due to illness, through to performance failures and more minor forms of absenteeism. There was no express provision within UPP relating to disability, although there were points at each stage of the process where allowances or adjustments could be made for a disability.
Once the process began, Mr Buchanan was taken pretty swiftly through the stages of UPP. He was issued with return to work compliance notices, despite the Police being fully aware from medical evidence that he could not comply with the timescales given. He suffered anxiety and distress as a result.
Mr Buchanan complained to the Employment Tribunal that his employer’s decisions to instigate and continue with the process amounted to discrimination arising from a disability which could not be objectively justified.
The ET unanimously held that the steps of the procedure amounted to unfavourable treatment because of something arising from disability. The majority held that the procedure itself (rather than the way that it was applied) was justified and they dismissed the complaint. Mr Buchanan appealed.
The Appeal Outcome
The EAT considered the question of justification and found that it was not enough for the ET to ask whether the UPP procedure in some general sense was a proportionate means of achieving a legitimate aim.
Where a policy or procedure allows a significant amount of discretion in its application and where the employer has to assess on an individual basis whether allowances or adjustments should be made (as was the case with UPP – and probably with most policies and procedures applicable to attendance), the tribunal should ask whether the treatment itself was justified.
Lessons for Employers
This case also serves as a helpful reminder to employers that:
- For an informed decision to be made in a case of long-term absence through disability, a proper process (ideally set out in a dedicated long-term, or mental health sickness policy) requires medical evidence as to whether there is any prospect of the employee returning to work and in what capacity, consultation with the employee about all options including alternative work, before considering dismissal.
- Discrimination awareness training for managers is extremely important. Where a policy or procedure allows discretion in its application, the managers operating that procedure must know the requirements of the Equality Act, in particular, disability discrimination. In the case of Buchanan, they were not. The EAT noted that it was “…very unlikely that that the officers concerned understood the extent of their powers under the legislation or their discretion under the policies…”, and commented that “…on any view there was an astonishing lack of attention to the issue of disability…”.