Month: January 2017

The Paradox of BT’s Occupational Health Service

The Paradox of BT’s Occupational Health Service

“But how will I eat cake if my head is over there, and my hands are over here?”
Marie Antoinette

An interesting decision has just been published on the Pension Ombudsman website.  It concerns Mr E versus British Telecommunications PLC and involves ill-health and medical retirement.

The paradox here is that BT wanted it’s cake and to eat it.  It wanted to dismiss someone due to ill-health but it didn’t want to pay that person the injury benefit that person was entitled to.

Mr E complained that BT, his former employer, refused to award him BT’s medical retirement benefits.  The Pensions Ombudsman found in favour of Mr E and told BT to do it properly.

Displaying the arrogance mostly seen by police pension authorities, BT didn’t like the fact the PO was making a decision in the case.  With unabashed chutzpah, BT submitted that the employee benefit is not within jurisdiction of the PO because it is neither an “occupational pension scheme” nor a “personal pension scheme”.

Dismissing BT’s argument with savagery, the PO clearly stated that such matters are within it’s remit:

The right to bring a complaint to the Ombudsman, is a statutory right to complain to a body established by the Pension Schemes Act 1993, which seems to me to fall squarely within that exclusion.

Play for the ball BT! … never go for the man – or indeed the referee!  Meaning: assess the point of law but don’t go making a proclamation that the referee shouldn’t be on the pitch.  This desperation shows their argument is lost already and shows them up as idiots.

Anyway, back to Mr E.

BT refused his ill-health retirement on the basis that their Occupation Health Service (OHS) “deemed Mr E was not suffering from ill health and that he was not permanently incapacitated as other treatments were not exhausted”.

This is exactly the issue facing those injured on duty and on long term sick from police duties. Not having exhausted all treatment options is an often repeated mantra to deny permanency.

The trouble with BT’s claim (that Mr E had not already exhausted all treatment options) was that he had already been dismissed on grounds of capability due to ill health.  Before the PO got involved, he had taken BT to the Employment Tribunal for unfair dismissal, disability discrimination and unlawful deductions of wages. The matter was settled with an agreement and BT paid him £106,750.

But BT obviously had the hump and decided to prolong the misery for longer.

So what did the PO say about BT’s duplicity?  The skulduggery of, on the one hand dismissing someone for ill-health, and on the other saying his ill-health wasn’t sufficient to pay a medical benefit?

The PO adjudicator said although BT through their OHS had stated that alternative treatments were available, the OHS did not state what outcome, on the balance of probabilities, these treatments would produce for Mr E.

BT did not ask their OHS this simple question.  In other words just saying there’s treatments available isn’t enough.

The OHS used a doctor named  Dr Lichfield.  This occupational health doctor made a general statement that he thought improved medical management would not suggest that Mr E remains incapacitated.  Dr Lichfield said:

Mr [E] appeared not to have undergone the full range of treatments for his condition and, in particular, that he had not seen a mental health specialist

Again, back to injury awards, this is a common statement found in SMP reports that refuse applications for ill-health retirements.

The PO considered the medical opinion of Dr Lichfield as not sufficient as it wasn’t good enough.  OHS and BT needed to establish what Mr E’s prognosis would be if he completed the entire course of available treatments.  And they hadn’t done that so the complaint was upheld.

This decision has overlap into the world of injury awards.  It shows the PO isn’t frightened off when an organisation challenges his jurisdiction.  It also shows that a medical opinion is not good enough when that decision is based on the wrong question, or the reasoning behind the decision was either absent or poorly explained.

Well done Pension Ombudsman.

Update – Young Judges Win Employment Tribunal

Update – Young Judges Win Employment Tribunal

We recently posted that the Ministry of Justice (MoJ) discriminated against younger judges by forcing them to leave their final salary scheme while protecting older judges.

View story at Medium.com

The ruling, which confirmed there had been age, sex and race discrimination, could cost the government up to £118m. The case could also have knock-on consequences for both public and private sector.

The ET judge made this conclusion (page 36 of the judgement):

Conclusion

125. By reason of the transitional provisions contained in Part 2 of Schedule 2 to the Judicial Pensions Regulations 2015 made by the respondents, the respondents have treated and continue to treat the claimants less favourably than their comparators because of their age. The respondents have failed to show their treatment of the claimants to be a proportionate means of achieving a legitimate aim.

Employment Judge S.J. Williams

Read the full ET transcript here mccloud-v-moj.pdf

mccloud-v-moj

 

 

 

Post-Employment Victimisation & Discrimination is Unlawful

Post-Employment Victimisation & Discrimination is Unlawful

President Franklin D. Roosevelt would not travel on the 13th day of any month and would never host 13 guests at a meal. Napoleon and President Herbert Hoover were also triskaidekaphobic, with an abnormal fear of the number 13.
– Unknown

Friday the 13th, considered by many as one of the unluckiest days of the year, was upon us yesterday.  We published this post:

Proportionate Means of Achieving a Legitimate Aim

For those HR professionals that took the decision to stay tucked up in bed all day to avoid any potential Friday the 13th bad luck that may come their way, or alternatively, locked themselves in their drab hermetic-sealed office to ignore the superstitious chatter, we are giving them a second chance to embrace the Equality Act 2010 (EqA).

There will be those who administer the police injury Regulations – those indefatigable HR professionals that braved their fears yesterday and faced Friday 13th head on – who may have read the above post but still have the asinine view that the EqA does not apply to them: You know the sort!  their mantra, oft repeated, is … “we have a statutory duty… dontcha know! Anyway these medically retired officers have left – they can’t touch us with equality law“.

Oh dear.  How wrong can they be?

Dear reader, let us introduce you to the Court of Appeal decisions of Jessemey v Rowstock Ltd & Anor [2014] and Onu v Akwiwu & Anor [2014].

The Court of Appeal handed down these two judgements setting out important points of principle in equality law. In Jessemey v Rowstock Ltd & Anor [2014] (an age discrimination case) , heard alongside the conjoined appeals in Onu v Akwiwu & Anor [2014] (race discrimination case), the court found that the EqA does cover post-employment victimisation.

The EqA does provide for claims of post-employment victimisation, as required by the Equal Treatment Framework Directive (2000/78/EC), the Race Directive (2000/43/EC) and the European Court of Justice.

Post-termination protection is conferred by Section 108 of the Equality Act 2010 and that section applies only where a relationship has previously existed between the parties.  For instance, the relationship between a police force and those it medically retired!

In particular, the Court of Appeal took into account:

  • –       at the time the act was drafted, post-employment victimisation was unlawful (Rhys-Harper v Relaxion Group plc);
  • –       there was nothing suggesting that the government intended to change to law and remove this protection;
  • –       the Act’s explanatory notes suggested that post-employment victimisation was to be covered;
  • –       if it was not covered, the UK would be in breach of EU law; and
  • –       there is no rational basis for treating post-employment victimisation differently from post-termination discrimination and harassment.

Those not aligned with this truth are operating on a wrong perception of reality.

Coherence and internal logic are not notable attributes of the Friday 13th superstitions. Just like the film franchise series of the same name getting sillier and sillier, the failure of police forces to grasp their duty and to consider the EqA when dealing with those with injury awards will lead them into their own world of  never-ending horror sequels.

 

 

 

 

Proportionate Means of Achieving a Legitimate Aim

Proportionate Means of Achieving a Legitimate Aim

“Against legitimacy is arrayed usurpation; against modest, single-minded, righteous, and brave resistance to encroachment is arrayed boastful, double-tongued, selfish, and treacherous ambition to possess. God defend the right!”― Charlotte Brontë

You won’t find the Employment Appeals Tribunal decision West Midlands Police & Others v Harrod UKEAT/0189/14/DA in our sidebar feed as it concerns age discrimination not disability discrimination.  But we are now going to talk about it anyway!

West Midlands police and four other forces needed to make manpower savings to ensure continuing efficiency whilst suffering budget cuts. By law no officer could be retired in order to secure efficiency unless he had an entitlement to a pension worth 2/3 of average pensionable pay after 30 years service. The forces retired those officers who had such an entitlement.  The officers complained they had thereby been indirectly discriminated against on the ground of age, and an Employment Tribunal (ET) upheld their claims.

The ET originally found that the widespread practice of requiring the retirement of officers in this way was not a proportionate means of achieving a legitimate aim. It took into account that there were other ways in which the forces could have cut costs.

However, the Employment Appeal Tribunal disagreed. It held that, while discrimination potentially occurred when the forces retired the police officers, the tribunal had been wrong to conclude that the forces’ actions were not justified.

The Honourable Justice Langstaff said this of the flawed decision of the original ET

It applied too stringent a standard of scrutiny, and did so in part because it failed to engage with the fact that Parliament had chosen to make A19 in the terms it did, wrongly thought A19 was a provision intended to provide security of tenure (which it demonstrably did not, since it allowed for the opposite), and failed to analyse the reasons of social policy which underpinned the restriction of the use of A19 to those who had an immediate pension entitlement

In a rare twist, there is something significant to the judgement which is found in the postscript of the transcript.  Justice Langstaff says this:

Though it may be said that those over 48 are not all, nor inevitably, included in the group of those subject to A19, since not all may have served for long enough, it is entirely permissible to see the group constituted by those over the age of 48 as being at risk of inclusion, whereas those under 48 could not be.  This is a difference entirely and directly defined by age.  It leads me to think that the discrimination here would properly have been identified as direct …

It leads me to think that the discrimination here would properly have been identified as direct

Justice Langstaff is saying the arguments of the appeal could have been put to him as direct discrimination and he postscripts his view in order to:  “. . . serve to tell others who face similar circumstances that they should not necessarily assume their case is one of indirect rather than direct discrimination, and may wish to argue the point out fully, as it has not been before me”.

In plain language, the court was saying that the officers would have won their case if it had been presented on slightly different grounds.

Why is this worthy of your intention?

Because there there’s no objective justification defence for cases of direct discrimination.

We can relate this to the way in which disabled former officers are being regularly discriminated against, in that they are being selected to have their degree of disablement reviewed solely on the basis of which band of injury pension they receive.

There is ample evidence that those few forces who are still hell-bent on conducting unlawful reviews target pensioners who are in the higher bands. There can be only one reason for this sort of selection, and that is the higher bands represent the best opportunity for reduction and thus saving the force money.

Bear in mind that we are talking about those forces which hold reviews which are unlawful in other ways as well as discriminatory here – reviews where a corrupt doctor acting as SMP for a corrupt police pension authority via a corrupt HR department, supported by a corrupt legal services department set out to subvert the injury pension Regulations so as to achieve a reduction in pension payments to damaged and often very vulnerable people.

Choosing to review band three and fours more regularly than band ones is directly discriminatory.

Indeed, the situation is that band ones are rarely reviewed by these corrupt forces. Go figure. A band one can only be increased, not reduced, so why bother to review them?

The discrimination is direct. Select those pensioners on the higher bands for no reason other than they are on a higher band. Send them a questionnaire and threaten suspension of their pension if the stupid and intrusive form is not completed.

The madness of these forces is such that they see their discrimination as being obligatory. They actually think they have to review – the oft-repeated false declaration of, ‘We have a duty to review.‘ Of course, nothing could be further from the truth.

The opposite of discrimination is discretion, and forces are required to apply individual consideration to whether or not it is appropriate to review anyone’s degree of disablement. Yet, in their blind ambition to save money certain forces make no allowance for the nature or severity of the injury suffered, or the greater adverse impact a review has on those most vulnerable due to mental injury.

We know of instances where hugely distressed pensioners, in tears, shaking with apprehension, unable to form a coherent appreciation of the legal aspects of the process, and unaware of the nature and intent of the loaded questions put to them by a corrupt SMP, have been refused the comfort and support of a companion or chaperone during the medical interview. SMPs have been told, incorrectly, that they have the power to ‘direct’ pensioners to do this or that. They think they can make up rules, such as barring companions being present, whereas the fact is they have no authority whatever to do anything which is not specifically set out in the Regulations.

No matter how badly a police pension authority, or it’s HR department or SMP behave towards serving or medically retired officers, sometimes they will claim that they are just doing what they think their statutory role forces them to to. They are mistaken.

This post intends to show the reader that in fact the Equality Act makes it harder for employers (post employers etc.) to show justification than was the case under the Disability Discrimination Act 1995.  It is no longer sufficient for a police pension authority to blindly follow ‘processes’.

Before we move on to the ‘legitimate aims’, we need to mention the types of disability discrimination and the defence of objective justification.

Direct discrimination is where because of a disability, A treats an individual B less favourably than it treats others, or would treat others (s.13 EqA)

For ‘discrimination arising from disability’ and ‘indirect discrimination’ the employer (former or present) has a defence if it shows its conduct is a ‘proportionate means of achieving a legitimate aim’.

So far, so good.  So let us talk about when this defence does not apply: As mentioned above by Justice Langstaff, it does not apply to direct discrimination because of disability. That cannot be justified. Ever.

It is a fact that the defence also does not apply to the reasonable adjustment duty.  In other words, even if discrimination can ever be justified, the duty of providing reasonable adjustments to those discriminated against still wholly exists.

The Supreme Court in Akerman-Livingstone v Aster Communities Ltd 2015 2015 (concerning eviction of a disabled tenant), laid down a four-stage structured approach for classifying a ‘proportionate means of achieving a legitimate aim’:

  1. First, is the objective sufficiently important to justify limiting a fundamental right?
  2. Secondly, is the measure rationally connected to the objective?
  3. Thirdly, are the means chosen no more than is necessary to accomplish the objective?
  4. Is the  impact of the rights infringement disproportionate to the likely benefit of the impugned measure

An exception to this is when the individual has no real prospect of establishing that he/she is disabled.  Of course, if a person has a permanent disability as defined by the Police Injury Benefit Regulations this defence will not apply. All IOD pensioners are de facto disabled.

Therefore blindly reviewing pensioners based on what band their pension is, or following a policy which sets the intervals between reviews, or sets out an intention to review all pensions without any consideration to the individual, or is based on the aim of reducing the financial obligation of the police force to its disabled former officers are not valid objectives.

The only legitimate aim a PPA can hold is the correct administration of the Regulations.  A review doesn’t exist to see if someone’s award is too little or too much – only to answer the Regulatory question of substantial alteration since the last final decision. Any objective intended to look at earnings in an attempt to lower their burden to injury awards is not legitimate.

Picking on those more severely disabled purely because they receive a proportionally higher injury award is not rational, and it certainly is not fair.

The Supreme court found the Equality Act applies in cases where an eviction process is a statutory function. Similarly the supposed ‘duty’ of police pension authorities to conduct reviews of degree of disablement is subordinate to the Equality Act.  If a PPA does not perform the test when it deals with disabled people then it breaches not only it’s ‘duty’ but also primary legislation.

The Public Sector Equality Duty, or “PSED” as we will come to know and love it, came into life when section 149 of the Equality Act 2010 came into force.

149 Public Sector Equality Duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

David Scoffield QC, in his report to the Police Service of Northern Ireland, where there had been widespread maladministration of police injury awards, had this to say on the practical application of a public sector equality duty:

I have already suggested that this may well be an area where a general policy, applicable to all cases, is not the best way to proceed….
Given the contention around reviews, it also occurs to me that officers might be more receptive to being called back for review where they can be satisfied that this was considered to be an appropriate response to the particular circumstances of their case, rather than merely the result of a ‘bureaucratic’ policy of general application

Following bureaucratic policy with no allowance for individual circumstances is not a proportional use of any power or ‘duty’.  This was recently proved in the recent 2016 EAT of Buchanan v The Commissioner of The Met where the Metropolitan police lost their argument that it was proportional to instigate and continue with the informal management action process and the formal UPP process.

The procedure laid down in the Regulations and the policies which the Met developed easily meant it allowed for individual assessment in each case at each stage – but the Met thought they knew better and applied everything blindly and without forethought.

The steps that led to their rejected defence of proportional means for a legitimate aim was not mandated by the procedure or by any policy of the Met. Section 15(1)(b) of the Equality Act 2010 required the Employment Tribunal to consider whether the treatment was justified; and in such a case as this, it was not sufficient to ask whether the underlying procedure was justified.

Let’s wind up this brief exploration of forces’ confusion between discrimination and discretion.

We’ve talked about there being no defence to direct discrimination and that a justifiable legitimate end can not be used.

We’ve mentioned that sometimes what seems to be indirect discrimination can be in fact direct discrimination.  We’ve also touched on the fact that when even a justifiable objective exists a public authority has an obligation to prove it has considered all the points raised in it’s Public Sector Equality Duty.

Finally, what we are saying here is that a letter from HR saying they are reviewing you, because the chief constable has a statutory duty to do so it not good enough. There has to be a good, rational, individual reason for a police pension authority to consider whether your degree of disablement has altered. A fishing expedition is not a proportionate means of achieving a legitimate aim.

If forces continue to send out letters like this they will find themselves defending a disability discrimination claim. We remind these forces that direct discrimination has no defence.  Boastful, double-tongued, selfish, and treacherous ambition leads inevitably to a very bad day in court.

 

Defending the Indefensible

Defending the Indefensible

During the festive period we didn’t waste valuable Quality-Street-eating or telly-gazing time.  Our investigative columnist was simultaneously scoffing chocolates and watching Dr Who whilst trawling our archives.

We’ve dusted off a letter from Julie Spence, the former Chief Constable of Cambridgeshire.  As a Chief Constable she made the extraordinary claim was that the guidance in Home Office Circular 46/2004 was mandatory – that she had no choice but to reduce those over 65 years of age to the lowest award and zero percent disability because:

that it is not our job to pick and choose the regulations that we will apply and the ones we will ignore

In a letter written to the local NARPO magazine, Spence was attempting to justify her position, allegedly based on ‘legal advice’ she impudently claims, that the Home Office Guidance that said those over 65 years of age have no capacity to earn was compulsory and it is a cruel irony of life that people are complaining given she is just doing the good the work of restoring order from chaos.  Apparently.

Here’s the full letter.  Also you can find the text of the letter at the bottom of the post.

PAS0062

Nowadays Notts, Merseyside, Avon & Somerset and Northumbria are currently all following the rule of Spence.  Argue black is white and claim what they force upon disabled former and serving officers is mandatory.  When it clearly is no such thing.

You might care to bear in mind that Julie Spence has a law degree, which would lead one to presume she should have known full well the true status of Home Office guidance, and if she was in any doubt about the status of HO guidance she had a telephone on her desk which she could have used to call the HO for clarification.

Instead she decided to follow the same nonsense spouted by force solicitors such as Northumbria’s Nicholas “all SMP’s are judges” Wirz and Avon & Somerset’s Daniel “we can only imply threats to suspend awards” Johnson.

In March 2010 she announced her retirement following repeated challenges over her claim and a matter of days after the Home Office advised all forces to suspend reviews – a clear signal of admission that the guidance she insisted was ‘mandatory’ was in fact unlawful.

The unlawfulness of the guidance and the primacy of Regulations was reaffirmed in the Ayres Pension Ombudsman decision, and the judicial reviews of Crudace, Simpson and the consent order made in Slater.

So the next time some HR Director says they have ‘taken legal advice’, just remember, as far as the quality of the advice goes, they would’ve been better off talking to the coffee machine.

letter from our Chief Constable:  

Dear Mr MaCallum  Congratulations your new role as Chair- man of Cambridgeshire NARPO.

I am sorry that my first letter to you as Chairman is one in which I feel I  express my disappointment.

I read with some surprise David Blake’s  goodbye message contained in the April  NARPO newsletter, and the criticism of me  that I “remain intransigent”. I am concerned  that this gives your members totally the  wrong impression.

If by this it meant that I am bound by  statute, regulations or mandatory Home  Office guidance on the issue of the payments of injury awards, then I am.

If it means that I Will not tax-payers  money where I do not have the authority to  do then I agree.  

If it means that I Will listen , that I am  not prepared to explore avenues that others  have progressed, or that I do not appreciate  or understand all view points on this issue  then I reject the criticism.  

As Police Officers each one of your  members understands, or should under-  stand, that it is not our job to pick and  choose the regulations that we will apply  and the ones we will ignore.  

Sometimes we have to make tough choices  about the action we take. As a public  service, this is what is expected.

NARPO have asked me to look at options  that other forces have used, and I have done  that. I have sought legal advice to explore  the extent of duty and authority that exists.  Further I have sought and received advice  about Home Office Guidance that NARPO  had advised allows discretion, and been told  very clearly that it is mandatory.  

I do not call this call this intransigence.  I call this living with reality. It is a reality that should  have been gripped several years ago and the  fact that it was not is yet another symptom  Of the fact that Cambridgeshire for  many years a failing Force.  

It is One Of life’s cruel ironies that we turn  on individuals who try their best to restore  normal good performance. In fact NARPO  would be better directing their criticism to  those who were part of the system that  allowed that dreadful mess to be created in  the first place.  

I also need to let you know that despite what been written, every officer who  retires from Cambridgeshire Constabulary  may have a meeting with me. Many people  take up this opportunity, a small number  choose not to – that is their choice. If in the  future you want to check what the current  policy in the force is, please feel free to  phone my office and my staff will endeavour to provide all the help you need.  

We need to work together and have an  dialogue, even over the tough times, where  we have to agree to disagree. said, I  truly do forward to supporting  NARPO and would be grateful if you could  rectify any misunderstandings your  members may currently have about the  force. If it would help please print this  letter in any upcoming newsletter.  

Julie Spence OBE Bed LLB MA MBA  Chief Constable

 

Introducing Our Live Feed of UK Employment Appeal Tribunal Case Law

Introducing Our Live Feed of UK Employment Appeal Tribunal Case Law

Happy new year to all our readers!

Under the Equality Act 2010 (Specific Duties) Regulations 2011, police forces are listed bodies (under schedule 19) and are required to comply with the non-devolved general and specific duties under the Equality Act 2010 (EqA). The Court of Appeal has clarified that protection against victimisation contained in the Equality Act can be extended to former employees.

In preparation of our 2017 series focusing on disability discrimination law, we are proud to publish another live connection to the British and Irish Legal Information Institute website.

The new Disability Discrimination EAT Caselaw menu item can be found on the right sidebar:

You will see each Employment Appeal Tribunal case (and new ones as soon as they are published) defined as relating to the Police (either as the named party in the case or referenced by the Judge as relevant to the law as established by the outcome of a former case).

The above search of bailli.org using the terms ‘disability discrimination‘ AND ‘chief constable’/’commissioner of the Met‘ (as at 1st Jan 2017) returns 422 results for EATs.  A  cursory straw-poll of the results shows that 31 cases directly relate to a Police force as a named party in the title of the appeal – so 7.3% of these listed disability discrimination EATs directly involve a police force and the rest involve other employers where the judges have use the legal precedents found in the police related EATs or their subsequent Court of Appeal hearing.

This frequency shows a revealing characteristic of how UK police services apparently fail in their obligations to the EqA given the appeal tribunals they defend are regularly quoted in otherwise non-police disability discrimination court proceedings.   Evidence of deep institutional failure or are forces the unfair victims of vexatious complaining? If the outcomes follow the same pattern of the judicial reviews, the majority of which are found against the police pension authoities, the former is more probable.  We intend to put a meaningful measure to the EAT results.

Is horrendous treatment of those applying, or with an injury award, a proportionate means of achieving a legitimate aim?  Is the aim legitimate and are there no less discriminatory ways of achieving it?   Can police forces admit to discrimination but hide behind the defence of saying it is objectively justified?

Over the coming months we will try to answer these questions and explain in easy terms how these cases relate to those with, or applying for, injury awards.