Former Met Officer wins UPP Tribunal Appeal

A disabled police officer has won an Employment Appeals Tribunal (EAT) disability discrimination case against the Metropolitan Police after he was told to return to work despite medical evidence saying the enforced return was impossible.

Mr Finlay Buchanan had been absent from work for eight months when the Met began to take steps under a procedure which bears the name Unsatisfactory Performance Procedure (“UPP”).

http://www.bailii.org/uk/cases/UKEAT/2016/0112_16_3009.html

“Mr Buchanan is a trained police motorcyclist.  He was assigned to the Diplomatic Support Group in 2002.  On 21 December 2012 he was involved in a serious motorcycle accident while responding to an emergency call.

The accident was not his fault: the brakes on his motorcycle failed.  He made a good recovery from his physical injuries.  But he developed serious post-traumatic stress disorder.

By April 2013 he was a disabled person for the purposes of the Equality Act 2010 and by May 2013 the Metropolitan police knew or could reasonably be expected to know he had the disability.  He has never been able to return to work.

At the time of the Employment Tribunal hearing in July 2015 medical retirement was under consideration.  That medical retirement has now taken place.”

The original 2015 Employment Tribunal (ET) unanimously held that the steps to force Mr Buchanan to return to work by implementing the UPP amounted to unfavourable treatment because of something arising from the Claimant’s disability.

But the 2015 tribunal found that the unfair treatment was justifiable  under section 15(2)(b) Equality Act 2010 that allows for a proportionate means of achieving a legitimate aim.  In other words, because they concluded that, as the UPP was administratively correct in it’s over-riding procedures, the application of it had a defence of justification.

However the  ET also accepted that the various items of treatment were because of something arising from the Claimant’s disability and that one member of the panel Dr Moher dissented to the ‘justification’ defence.  He argued that the justification defence must extend to the actual treatment.  He found that the defence was not established.  He said that alternative steps of extending the improvement notice or setting ill health retirement procedures in train should have been adopted.  The process was driven by a mechanistic desire to push on through the formal procedures.

The 2015 ET decision was quashed in this EAT by His Honour Justice David Richardson.

The judge said that the Met’s HR officers did not appreciate the extent of their powers under the Regulations or their discretion under the policies.  He also dismissed the relevance of the case law (Seldon v Clarkson Wright & Jakes) that the Met relied upon saying it would only rarely be applicable to disability discrimination cases.

This EAT case makes it clear that HR managers should not robotically follow UPP procedures and should not blindly use policy when it is not appropriate to do so.

The question will always be whether it was proportionate to the Respondent’s legitimate aims to take a particular step under the UPP.

In making that assessment it is of course relevant to take into account that Parliament has laid down a procedure to be followed before an officer can be dismissed on grounds relating to capability; so long as it is also appreciated that neither Parliament nor the Respondent’s own policies require a mechanistic application of the procedure.

It is also relevant to take into account the impact of applying the procedure in a particular way on a particular officer.  I would, however, caution the ET to make careful findings as to the Respondent’s aims;

I think the policies show they may have been more sophisticated than simply “to move in stages towards either a return to work or dismissal”.