Equality Act 2010

Dismissed PTSD Officer wins right to sue for discrimination

Dismissed PTSD Officer wins right to sue for discrimination

A former Metropolitan police officer who suffered post-traumatic stress disorder (PTSD) following an assault while on duty, but was dismissed by a misconduct panel who failed to take the PTSD into account, has been given the right to sue her bosses for discrimination at an employment tribunal.

The officer – named in court only as ‘P’ – said the misconduct panel which ended her career in 2012 had been guilty of disability discrimination because it failed to take her PTSD into account.

Previously, police officers could not bring proceedings in an  employment tribunal, to challenge the actions or decisions of the Panel, because it’s a judicial tribunal.

The Supreme Court ruling on Wednesday over-ruled this.  The ruling is a game-changer that determines that police internal misconduct panels do not enjoy judicial immunity and victims of discrimination on the grounds of race, gender or disability can now pursue discrimination claims against the police at an employment tribunal.

P (Appellant) v Commissioner of Police of the Metropolis (Respondent) – The Supreme Court

Case details

It is apparent that this judgement has further implications on other professions, panels and tribunals, including Police Medical Appeal Boards (PMABs).

The Supreme Court is highest authority in the interpretation of UK law and can not be appealed.  Such a judgement shines a light on the thought processes and current paradigm of our leading judges in how, and to whom, the Equality Act applies.

uksc-2016-0041-press-summary

 

Employment Judge Rules That The Equality Act Applies To Injury Awards

Employment Judge Rules That The Equality Act Applies To Injury Awards

Northumbria Police has  failed in its attempt to strike out a disability discrimination claim against a former officer with an injury award who Northumbria wanted to continue a review under Regulation 37 despite the former officer being sectioned in a mental health institution.

In perhaps the first judgement in employment law concerning the Police Injury Benefit Regulations, Employment Judge A M Buchanan (sitting alone) has ruled that the Regulations are an occupational pension in relation to the Equality Act 2010 (EqA).  Northumbria Police tried to persuade the court to dismiss the claim without a full hearing of all of the evidence on the basis the tribunal had no jurisdiction.

The immediate consequence is that Section 61 EqA is a gateway that allows discriminatory action to challenged in an Employment Tribunal, when it occurs in the administration of injury awards.

Judge Buchannen said;

I consider there is every reason why a nondiscrimination rule should apply to the Scheme. It is a scheme which clearly provides benefits in the nature of a pension

And he continued that the only forum to seek redress for such matters will be an Employment Tribunal;

I conclude that the matters which are sought to be litigated in these proceedings are not matters which fall within the jurisdiction of the Administrative Court of the High Court or for that matter the Crown Court. The claimant does not seek to challenge the process per se but seeks to have a Tribunal adjudicate upon whether or not in doing what he has done the respondent has breached the provisions of the 2010 Act in the way he has carried out his duties.

The claim can now proceed to full trial.   If Northumbria appeal the preliminary judgement then it will be heard before an Employment Appeals Tribunal and become a stated case. The full judgement can be read below:

Mr DJ Curry v The Chief Constable of Northumbria Police: 2500281/2017 – GOV.UK

Employment Tribunal decision.

Introducing Our Live Employment Tribunal Search Feed

Introducing Our Live Employment Tribunal Search Feed

Following  our Employment Appeal Tribunal (EAT) live feed we are pleased to announce another step in our quest to be the authoritative source of all injury awards information.

As of February 2017 recent Employment Tribunal judgements can be accessed via GOV.UK at https://www.gov.uk/employment-tribunal-decisions.  We have created a RSS feed to this database to extract decisions involving police forces that will be updated automatically as decisions are added.

EATs have always been published on the British and Irish Legal Information Institute (BAILII) but anyone wanting to search or browse employment tribunal decisions had to attend in person at offices in Bury St Edmunds for English and Welsh decisions, and in Glasgow for Scottish decisions.  Employment tribunal judgements are first-instance decisions and are not binding on subsequent cases.

However, decisions often provide a detailed account of the facts in a case, which can incentivise parties to settle rather than risk bad publicity. Judgements can also provide helpful examples of how tribunals deal with legal issues and fact situations

You can find the link on the right side bar under Case Law:

Not all decisions will be matters concerning the Equality Act and disability discrimination but you will be able to see patterns from certain police forces as repeated respondents.  We will blog about pertinent cases that overlap into injury awards and ill-health retirement.

Everlasting Anxiety

Everlasting Anxiety

Anxiety is love’s greatest killer. It makes others feel as you might when a drowning man holds on to you. You want to save him, but you know he will strangle you with his panic.”
Anaïs Nin

It seems that those who oversee the administration of injury awards in Staffordshire Police have rather a special collection of ineptness.  Quite a feat to combine the malevolence of Northumbria with the idiocy of Avon & Somerset.

For a force that officially signed a contract and abandoned reviews in 2008, the errors and illegalities in the letter they have sent out to all those retired with an injury award is exceedingly far beyond any, even the twisted mind, could conjure up.

We’ve published the missive in full at the end of this post.

Rather than pointing out the obvious conflict this letter has with the Regulations and case law – such as the invented duty that the 2015 Police Pension Regulations* forces them to do this (!)  and the continual use of the word “reassessment“, today we are going to talk about this paragraph:

This letter is just to inform you of the reassessment programme. Whilst I acknowledge this may cause you some anxiety, I regret that at this point in time I am unable to enter into correspondence with you about your personal circumstances. You will be written to again directly in due course when your injury pension comes up for review. The process is expected to take at least eighteen months, so it may be some time before you are written to again about this.

*(Very naughty Staffordshire!  A blatant lie!  In fact these Regulations has no implications on injury awards as they only refer to the Career Average Revalued Earnings Scheme (CARE) scheme and the lower/enhanced tier only applicable to those retired on this 2015 pension scheme – the PIBR 2006 Regulations are the only regulations that concern injury on duty awards)

Wow!  Sending an unsolicited letter, that they know (or don’t care perhaps out of complete indifference) will cause or manifest an existing diagnosis of a mental health illness, to a cohort of disabled individuals – some with severe PTSD, all with a protected characteristic under the Equality Act – and then sign-off by saying that they will happily prolong the assault for up to 18 months….

Just Wow!… What cave has Staffordshire been living in for the past five years?

The Department of Work and Pensions received a drubbing in the Court of Appeal back in 2013.  Court judges upheld a decision that the ATOS assessments for sickness and disability benefits discriminate against people with mental health conditions.  This followed an earlier decision by the Upper Tribunal that the Work Capability Assessment – the notorious computer based test which has led to hundreds of thousands of claimants declared ‘fit for work’ – substantially disadvantaged those with mental health problems.

The Appeal Court said:

Tribunal was satisfied that the difficulties faced by [mental health patients] placed them at a substantial disadvantage when compared with other disabled persons who do not experience mental health problems

The judges found that:

  1. In my judgment, therefore, the Tribunal properly identified relevant disadvantages in this case as potentially relating both to the actual determination or outcome itself, and to the process leading up to it.

So to speak the obvious; who has Staffordshire seen fit to sent a mass mailing list to, warning the recipient that they will spend the next 18 months in purgatory whilst knowing full well that what they intend to do will cause them harm?

Rhetorical answer: Only to members of the public with both physical and mental illness, who are permanently disabled  and who are proportionally certain to have many of the mental health disorders that are caused by a combination of factors, including changes in the brain and environmental stress.

Bizarrely this was sent out to even the people they have unilaterally decided not to review such as those band ones and those over 72.

Even those with a terminal illness recieved this letter. Whilst it’s excellent that they won’t be further victimised whilst end of life, but why stress them with irrelevance? – an example why mass mailshots to those with a protected characteristic without due public sector equality duty compliance is unlawful.

Though we are experienced in the dark-arts of those who administer injury awards, IODPA is still perpetually amazed that some police forces think those that get injured and permanently disabled on duty have no rights.

Avon & Somersent DCC Gareth Morgan may be thinking that becoming this force’s chief may not be a wise career move after all!

injury review intent 20042017_Redacted
injury review intent 20042017_Redacted 2

 

 

 

 

 

“Uncontrollable” Staffordshire Police

“Uncontrollable” Staffordshire Police

Oh Dear.  The force labelled by the Daily Mail* as “out of control” has decided to victimise those former police officers, now medically retired, who became injured on duty whilst serving for it. (*we know some people refuse to read the Daily “Fail” but occasionally it does serve a purpose for campaigning journalism  – Press Awards Newspaper of the Year for 2016).

Staffordshire is infamously renowned for continually using the discredited and neither “lawful nor unlawful”  ©NAMF  Police Earnings Assessment Matrix (aka PEAM) to make everyone, retired from it with an injury award, a band one. Don’t take our word for it, Staffordshire admit the Regulations don’t mention PEAM and that they use it in this freedom of information request:

PEAM is used along with police staff earnings and appropriateoccupational earnings information to calculate potential earnings. It is not necessary for PEAM to be in the regulations as forces can utilise differing methods for calculating earnings.

 

PEAM and Bad Maths

In an example of unprecedented lunacy, it seems  as though Staffordshire, with the current Chief Constable Jane Sawyer retiring, is looking at compulsory reviewing any former officer who ISN’T a band one!

The irony is unparalleled given the degree of disablement of the  majority of Staffordshire injury awards were calculated using a flawed methodology and therefore falls foul of the Fisher judgement that ruled that any “thin in the extreme” reasoning and lack of individual application means the decision should not stand.

PEAM by it’s nature removes individuality and covers all of those piped through it with a generic blanket of defaults – all variables predefined by a spreadsheet algorithm.

So it amazes us that these people can’t read?  If only the HR minions of Staffordshire viewed our blogs.  The legal bill of paying thousands upon thousands of pounds could be avoided.  Equality law exists to prevent this discriminatory use of a discretionary duty.

To give you a flavour of what unlawfulness to expect, look at the first line of their ‘policy’ here:

https://www.staffordshire.police.uk/ibr

The purpose of the reassessment of Injury Benefit (otherwise known as an Injury Pension or Injury Award) is to ensure that the recipient (the Injury Pensioner) receives the correct level of Injury Benefit.

Wrong from the get-go.

A review (under Regulation 37) is not a reassessment.  Only after evidence of substantial change can there be any revision to the degree of disablement and it is unlawful to calculate a new degree of disablement to find substantial change.  It absolutely has nothing to with regressing to the ‘correct level’ of benefit … whatever that is!

We covered the ridiculous “goldilocks” syndrome some HR directors grasp hold of over a year ago- read the dismissal of it here.

Someone in Staffordshire thinks they know everything there is to know about the Police Injury Benefit Regulations.

https://www.staffordshire.police.uk/article/6977/Legal-Background

Oh dear, Oh dear.

Whilst every other force steps backwards, Staffordshire jumps into the breach.  They even think Regulation 33 can be used to force people to complete their invented questionnaire.

https://www.staffordshire.police.uk/article/6981/FAQs—Injury-Benefit-Reassessment#answer6985

Interestingly Gareth Morgan, the Deputy Chief Constable of Avon and Somerset, will be appointed Chief Constable of Staffordshire next month.

Let us remind you of the February 2017 press release this future Chief gave concerning the historical abuses conducted by a police doctor, and subsequently covered up by senior personnel.

“Anyone requiring a police medical examination held on police premises by a police doctor should have had an expectation of being safe. It is clear that the conduct of some of these medical examinations fell well below this standard.Deputy Chief Constable Gareth Morgan

Plausible deniability can not be argued by Mr Morgan.  He was in a senior post whilst Avon & Somerset thought mass reviews were a good idea.  He was also the senior investigative officer on the 2015 College of Policing’s scathing report on the horrors of ill-heath retirement.

It looks like we will reporting extensively on Staffordshire and we will do whatever we can to show them the true path.

Reviews are just like painting the Forth Bridge, claim Merseyside

Reviews are just like painting the Forth Bridge, claim Merseyside

“Painting the Forth Bridge” is a colloquial expression for a never-ending task, coined on the erroneous belief that at one time in the history of the bridge repainting was required and commenced immediately upon completion of the previous repaint.  Such a practice never existed, as weathered areas were given more attention, but there was a permanent maintenance crew.https://en.wikipedia.org/wiki/Forth_Bridge

We have to laugh at the brass neck of Merseyside Police. According to Supernintendo Markay & Peter Owens the purpose of injury award reviews is to save money. That’s the stated, written into policy objective of the terrible-twosome who perform the dubious role of Merseyside’s medical retirement officers (MRO). They no doubt think that as soon as they have gone through the list and attempted to tar all IOD pensioners with the same band-one-brush, then hey-ho, it’s time to start up again to continue the misery, until everyone damn lot of them is whittled down to a band one.

The hypothetical question we have to ask is: once all are band one, will they wash the brush with white spirit, put the tar bucket in the shed and then leave the pensioners to peel and blister without applying any new coats ever again?  Will a single disabled former officer be left in peace, or will Merseyside ensure they all are reviewed regularly for the rest of their lives?

Both Markay and Owens are guilty of unleashing a form of barbarism against those injured on duty from this force, on the basis of a misconceived grasp of the Regulations, alternative truth, and spin. They intend, by their review policy to interfere in disabled people’s lives, to maintain them in a state of financial uncertainty, and to subject them to regular intrusive inquisitions, all in the name of their perverted and utterly unsupportable view of what the Regulations require.

They are determined, indeed, required by the force’s policy, which they seem to see as more important that the rule of law, to regularly demand that IOD pensioners declare any 10% increase in earnings. In the strange world occupied by Markay and Owens there is the belief that if someone sees a 10% increase in earnings then their degree of disablement will probably have altered substantially. However, they, very tellingly, have decided not to ask IOD pensioners to report a 10% decrease in earnings. They are not bothered by that inconsistency as fairness is not part of their game plan.

Do you remember this, below excerpt, from a letter penned by Owens to a person with an IOD award?  The bit about a salary increase is in red.  Note well that there’s nothing about a salary decrease.  In Owens’s world it’s a one-way-street with skills, and earnings dictating the degree of disablement. Leaving aside that the Regulations speak of the capacity to earn, not what might result from that capacity, we see again the one-sided, biased, money-saving objective. Gain a skill and your degree of disablement must have increased. No mention of skills eroding over time due to lack of opportunity to keep them honed and current. On this one way street, there is no traffic in the other direction. Skills can be acquired but never lost, earnings can increase but never decrease, co-morbidity can overtake the index injury never the opposite.

During the EU referendum campaign, there were many spurious overblown claims by leavers and remainers which ran fast and loose with the truth. Those scare tactics were but small fry, infinitesimally small fry, in comparison with the guff Markay and Owens are coming out with. For Peter Owens to create a policy to review injury awards and then to crow about the money he saved, whilst neglecting the laws broken and lives ruined, is an affront to truth and decency and reason.  It will cause suicides.  It may have already, we just don’t know all what happens after ‘they’ fire the gun at their target. No self-respecting citizen should put up with it.

We have a copy of Merseyside’s processes for the review of injury awards and it apparently relies heavily on a devoutly orthodox take on NAMF (now NWEF) guidance

Merseyside injury-pension-review-process-dj2016-161
(3 pages – hover cursor & navigate with bottom left arrows)

Advised not to have an age limit for holding reviews by a weasily solicitor plying his trade in Northern police force?  Don’t worry – have a limit anyway.   How can someone who has evidently heard of the word ‘discrimination’, even uttered by someone else, write such tosh?

The advice from the author of the NAMF guidance is that no upper limit should be used due to age discrimination. I have noted that some forces have considered using seventy years of age as an upper limit and to date Merseyside have used a ceiling of 65 years.

For the rolling review program, Merseyside policy ignores band one and focuses it’s attention more forcibly on those that cost the most.  Discrimination incarnate.

As previously reported injury award reviews have been prioritised with Band 4 reviews being undertaken first then Band 3 awards and finally Band 2. Band 1 awards are not subject of this review.

Of course, we regularly say that anything written by Nicholas Wirz automatically disqualifies itself. But it seems Merseyside take the spoutings of NAMF/NFEW that much further.  Take this rotten festering sore of a sentence found in page two:

When considering the implications of example 4 it is inevitable that a large proportion of ex-officers would have their injury awards reduced to Band 1.

Let us translate the above quote lifted from the policy.  They are saying if someone’s index injury has not improved, that if there are no jobs available that were not available or if no new skills are evident, but the former officer has developed cancer, then Merseyside are happy to reduce them to a band one.  Sod the consequences.

What about our more likely, real-life example that avoids Merseyside’s cliff-edge.  A former officer retired with physical injuries who developed a mental illness due to the adverse psychological effects resulting from being physically injured and disabled.  Over the years their injuries got somewhat better but their mental illness progressively worsened.  Should they be reduced to a band one by Merseyside?  Their disability is still a duty injury – they wouldn’t have mental health problems if they had not been injured on duty. It would be unlawful to reduce someone in such a situation, just as it is morally corrupt to reduce an injury pension because a person has cancer or Parkinson’s disease.  Why would Markay and Owens take a different position? … because they are delusional about the Regulations and blinded by their objective to save money, that’s why.

The 2010 Doubtfire (& Williams) judicial review sheds light on the truth that the focus is always on the disability, not the diagnosis.  We will return to Doubtfire & Williams (a dual hearing involving West Mercia and, quelle surprise, Merseyside) in another blog post.

What about the acquisition of skills being a two-way street?  As we mentioned above, Merseyside states that new skills can improve job prospects and thus earnings but nowhere does it say that the loss of skills, by being out of the job market, can reduce earning capacity.  Why is this?  Rhetorical question, of course.  It isn’t mentioned as this doesn’t allow Owens & Markay to work towards reducing all IOD pensioners to a band one.

Is anyone still in any doubt about the Mersyside’s nefarious position that reviews of degree of disablement are a cash-cow to recoup money? Look the last paragraph on page two.

In summary ten per cent of questionnaires sent out at this time have produced ongoing savings of approximately £30,000 per annum. [Exempt information section 40(2) Freedom of information Act, 2000, the personal data exemption].

We haven’t missed the stated implication that the questionnaire has led to the reduction, not the medical decision of a SMP.  Why employ a gun-for-hire SMP when a poxy and fallacious questionnaire combined with the stroke of Owens’s pen can do the dirty deed?

The policy sums up the elitism and arrogance and contempt for Regulations of those who just cannot accept that deserving people were given injury awards.

Wirz, Markay and Owens, and their coterie within the NFEW can’t get their heads around this. They are riddled with prejudice and are dismissive of the rights of disabled folk. They have produced policies and guidance which contravene the Regulations, and have done this not out of simple stupidity, but from a misplaced and wholly erroneous conviction that IOD pensioners need to be continually harassed in an attempt to reduce the impact of injury pensions on forces’ budgets.

Anyone with a brain can see that only a small minority of the people involved must actually believe the tripe that Merseyside uses to justify their position. They go along with it, for the sake of not poking their heads above the parapet. They value their jobs more than their conscience. Nor do those who are the named targets of our criticisms care to attempt a defence. They remain silent and acquiescent, for they dare not do otherwise. Our blogs remain unchallenged, for there is no riposte to the truth.

How can anyone with any knowledge of the Equality Act and the legal requirement for reasonable adjustments think that, just like the idiom of painting the Forth bridge, a future review can be scheduled immediately after the current one has finished?

Merseyside is disdainful of the law, and of the rights of disabled people:

On completion of this initial phase of injury award reviews the process will recommence and will be ongoing with new cases that have received awards in the preceding two years and also the reviews conducted at the start of this process will be due their next review.

Hogwash.

We now must speak in the language of revolution.  We must ‘rise up’. There is need for a ‘revolt’, by ‘force of argument’, against the dangerous madness of the policy espoused by Merseyside.

NARPO and the Police Federation need to take Merseyside to task and join with IODPA in condemning the concept of regular, repeated reviews.

IODPA’s advice to any IOD pensioner caught up in a revolving review program is they should seek redress in an Employment Tribunal for post-employment disability discrimination and subsequent victimisation.

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 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

 

 

 

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.

 

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.

 

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...