Disability Discrimination

Proportionate Means of Achieving a Legitimate Aim

iodpa Disability Discrimination, Equality Act 2010
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

iodpa Disability Discrimination, Equality Act 2010, newsflash
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.

 

Reasonable Adjustments & Disability Discrimination

iodpa Disability Discrimination
Reasonable Adjustments & Disability Discrimination

“Hope
Smiles from the threshold of the year to come,
Whispering ‘it will be happier’…”
― Alfred Tennyson

For IODPA, the most shocking thing about 2016 wasn’t Brexit, or even the election of Trump. Such ballot-box revolts are to be expected in an era when politics has become so paternalistic and government (and it’s sub-bodies) so estranged and, literally in some cases, out-sourced from the public.

Sadly we’re used to seeing the truth being obfuscated by those senior police staff, the ones who pretend they are in fact the police pension authority when the the scheme of governance says nothing of the sort.

Beings such as Wirz (Northumbria),  Supernintendo Markay (Merseyside), Julian Kern (A&S chief finance officer) & Stephen Mitchell (Notts HR) are bureaucrats that want to abuse the Regulations and then seek to claim credit for cutting costs (when ironically the appeals they create end up costing more); all along applying political strategies, including agenda limitation, scapegoating, ‘passing the buck’ and ‘jumping on the bandwagon’, whilst retaining the politician’s motivation that is driven primarily by the desire to avoid blame. 

No… what has shocked and disturbed us the most this year is the lengths that some doctors, the selected medical practitioners, go to to oppress both those injured police officers and those medically retired. Especially the energy they use in ignoring the medical need of those forced upon them and simultaneously making over-bearing threats of enforcement to their diktats.  This amounts to nothing short of bullying.  One such heinous example is denying the right to allow a  companion into the medical assessments.

Want to take along a Fed rep who knows the Regulations?  Dr Karen Nightingale won’t allow them in the room. Nobody.  Not even a spouse.  She enforces that you have to go alone to be interrogated on pain of ‘non-compliance’.

There is a pattern to the stories we hear.  Everyone of these SMPs reported to us in 2016, those who scream their zealous decrees and threaten the reporting of non-compliance with no hope of appeal, have attended a Northumbria sponsored training seminar that was hosted by Nicholas Wirz the solicitor of that parish, and was organised by the College of Policing.  For those only with a strong constitution, here’s his presentation again.

In 2017 we are planning on releasing a series of posts that will arm you with knowledge of the Equalities Act 2010 (EqA) and for those in Northern Ireland, the Disability Discrimination Act 1995.  note: In the UK the DDA has now been repealed and replaced by the Equality Act 2010, except in Northern Ireland where the Act still applies.

Wirz ‘trained‘ SMPs, like Nightingale, Cheng and Broome, think that their role as a SMP lifts them above the hierarchy of UK law.  They think that a medical question defined with a secondary instrument means that they can ignore the primacy of Acts of Parliament, such as the Equality Act 2010 (EqA).

Quasi-Judicial.  That’s what Nichola Wirz attempts to brainwash the delegate SMPs who attends his training seminars into thinking.  Quasi means semi, thus, such bodies which have some characteristics of a judicial body but are not strictly bound by the rules of procedure (unless provided by law) are quasi-judicial bodies.

Here is a sample from the book of Wirz:

In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of CoronerPOLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

So in this training seminar, Wirz bizarrely declares that these doctors have a similar power to Coroners.

One fault in many of Wirz’s assertions, is that whilst the role of a coroner is defined is primary legislation – the Coroners and Justice Act 2009 – there is no such legislation defining the role of a SMP.  A medical authority has no power under any Act of Parliament to act as a judge – they are a medical authority and as such are under the remit of the GMC.

Remember that the statutory question asked under the Regulations is a medical question.  A medical authority is defined as requiring registration with the GMC in the Medical Act 1983, specifically in the prosaically titled part two of this act: “Medical Education And Registration Persons Qualifying In The United Kingdom And Elsewhere In The EEC”.

A person is disabled under the EqA if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.  Being permanently disabled in relation to Police Injury Regulations means the EqA applies in most circumstances when dealing with injury awards.

Even Coroners aren’t exempted.

So you will see over the next few months a series of blogs looking into disability discrimination and how SMPs and HR employees are failing to give due reasonable adjustments to those medical retired or to police officers on long-term sick leave.

There is no defence against disability discrimination to say ‘processes were followed’.

Reviewing band threes or fours purely because they cost the most = discriminatory.
Setting a five year interval on those you reduce and twelve months on those you increase = discriminatory.

This quasi-judicial phrase spouted by Wirz gives SMPs the false impression that they can do whatever they want, to whomever they want. But another quasi-judicial process has fallen foul of the EqA already when Atos and the DwP faced humiliating legal defeat after Appeal Court judges upheld a decision that the Atos assessments for sickness and disability benefits discriminate against people with mental health conditions.

The injury award process is universally and unnecessarily harsh to all.  Drs  Nightingale, Cheng, and Johnson act like Inquisitor-Generals rather than doctors.  The process is bad enough when the serving or former officer is physically disabled but magnified exponentially for those with PTSD.  Failure to make reasonable adjustment to those with mental illness was dealt with in Secretary Of State For Work And Pensions V MM & DD wherein Lord Justice Elias stated that:

“the Tribunal identified various ways in which [Further Medical Evidence] would assist [people] with a range of mental disabilities, and in my judgment there was sufficient evidence to justify the conclusion that [mental health patients] were placed, as a group, at more than a trivial disadvantage”.

One size does not fit all and this is exactly what our upcoming series will show.

Just because there’s a UPP process, it doesn’t mean it should be blindly pursued (Buchanan v The Commissioner of Police of the Met).  A policy of reducing a person onto half-pay or no pay doesn’t mean the process has to be applied to a certain individual (O’Hanlon v Commissioner for HM Customs).

Conversely, we will show when some SMPs say, despite evidence of the opposite, someone isn’t permanently disabled and they should be retained with ‘reasonable adjustment’, that they are not considering the judgement of Hart v Chief Constable of Derbyshire Constabulary 2008 where it was made clear that:

Tribunal did not err in law when it held that the requirements of the regulations which necessitated training and experience in confrontational situations were what it described as an “irreducible minimum” in the training of police constables and it was not therefore open to the respondent to make an adjustment which would have the effect of waiving the strict requirement under the regulations that an individual must be fit physically and mentally to perform the duties of a police constable.

The EqA has quite a far-reaching application.  The case of Paterson v Commissioner of Police of the Met held that a senior police officer had a ‘disability’ within the DDA because of the effect his dyslexia had in a high pressure exam for promotion. The exam was a ‘normal day-to-day activity’.

Those injured on duty have to to deal with their injury on a normal day-to-day activity – in a much, much more life-inhibiting and extreme fashion.

So, even self-declared quasi-judicial SMPs have to abide by reasonable adjustments.  We plan to discuss in more detail Rackham v NHS Professionals Ltd [2015] UKEAT/0110/15.  This Employment Appeal Tribunal categorically asserted that:

“a Tribunal has a duty as an organ of the state, as a public body, to make reasonable adjustments to accommodate the disabilities of Claimants.”

In other words, everyone involved in the Regulatory process and resultant medical question, from HR drones, to SMPs, to PMABs have to accommodate reasonable adjustments – even, cough!, coroners SMPs aren’t exempt.  And over the next few months we will tell you how your rights should upheld, including informing SMPs that if you need help and a companion in their assessment to assist you in your disabling medical condition, then company you shall have.

Buckle-up for 2017.  It’s going to be an eye-opener.