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.