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EMPLOYMENT TRIBUNAL - W v COMMISSIONER OF POLICE OF THE METROPOLIS

The purpose of this circular is to update JBBs regarding a recent Employment Tribunal decision, supported by the Constables’ Central Committee, on the overlap between police disciplinary issues and forces’ obligations under disability discrimination legislation.

Whilst the following decision does not strictly bind other Employment Tribunals, it is considered to be a well-reasoned judgment and could be of benefit to other officers in similar situations.

The facts

In the case of W v Commissioner of Police of the Metropolis (ET Case Number 2201961/2012), the Employment Tribunal found that the MPS’ Professional Standards Department (“PSD”) discriminated against a disabled constable, when she was subjected to gross misconduct proceedings after an incident at work.

PC W was an officer who was working on restricted duties, due to long term mental health issues. During a difficult meeting with her line manager, PC W experienced a panic attack which caused her to try to flee the office in which the meeting was taking place. Her line manager sought to block the door to prevent her leaving, whereupon, PC W took hold of her line-manager’s arm, causing a minor injury to her manager.

PC W’s conduct was investigated and, despite providing a clear account of her panic attack and medical evidence from her GP also suggesting a panic attack had occurred, PSD pressed on with gross misconduct proceedings.

The misconduct proceedings were only discontinued by the panel at the final gross misconduct hearing itself, over a year later, based upon psychiatric evidence which had been obtained, which maintained a clear link between the alleged misconduct and PC W’s disability. Although the same psychiatric evidence was provided to PSD a month before the hearing, the decision was made to press on.

The Tribunal’s judgment

The Employment Tribunal upheld PC W’s claims for disability discrimination, specifically claims for a failure to make reasonable adjustments and for discrimination arising from disability. Whilst the Tribunal accepted that an initial misconduct investigation was warranted by virtue of the conduct alleged, it found that the main PSD officer involved had, during her investigation, simply “discounted the Claimant’s mental state” and “discounted the possibility that the panic attack caused the incident”.

The Tribunal found that PSD had viewed the incident “through the framework of the criminal law…rather than through a disability framework” which it noted was “unsurprising” given that the PSD officers involved had “no knowledge of the concept of adjusting for disability”. PSD had “never seriously considered whether it could or should adjust the disciplinary procedure”.

The Tribunal went on to hold that psychiatric evidence as to the link between the alleged misconduct and the disability should have been obtained much earlier by the MPS during the misconduct proceedings. Furthermore, it was held that the proper response to the psychiatric evidence should have been to discontinue the gross misconduct proceedings rather than pressing ahead to a full hearing.

Remedy and recommendations

PC W was awarded compensation for injury to her feelings.

Significantly, noting its “concern” that the MPS’ “disciplinary procedure, the investigating guide and the standard operating procedures do not refer to disability” and “that [PSD] staff have not received training in disability discrimination and that some of them still consider the outcome lenient”, the Tribunal made the following important recommendations:

  • All staff within the MPS’ PSD were to receive training in disability discrimination, the purpose being “to recognise a possible disability issue when it arises” and “to consider when an adjustment needs to be made”
  • The MPS’ misconduct standard operating procedure and investigation guide were to be subject to a full impact assessment in respect of disability issues
  • The steps are to be fully complied with by 24 January 2014.

Relevance to other cases

The principles outlined in this case should serve as a reminder to ensure that, where an officer, who has or may have a disability, is facing misconduct proceedings, any questions of disability are fully raised and addressed at an early stage of the investigation. This is particularly important where there is a direct link between the alleged misconduct and the disability, as in PC W’s case, and also where reasonable adjustments are required to assist the officer to participate effectively in the misconduct process.

This circular can be downloaded as a pdf here