Aitken v The Commissioner of Police of the Metropolis

Under s3A(5) of the Discrimination Disability Act 1995 (the 1995 Act) a person directly discriminates against a person if, on the ground of disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as or not materially different from those of the disabled person.

The claimant’s case is that his behaviour was caused by and is part of his disability. His difficulty in controlling strong emotions and apparently aggressive behaviour was on account of his various impairments. He says that he was wrongly perceived as being dangerous, either because those around him mistakenly thought that OCD made him dangerous, or that he had some mental illness that made him dangerous.

The ET found that the reverse was true: as a result of his behaviour, and not as a result of assumptions about mental illness, his colleagues reasonably perceived him to have some problems, were worried by his frightening behaviour and reluctantly reported the matter.

The ET concluded that

“191.

…we have said above that we are satisfied from Dr Broadhead’s clear and comprehensive report that as a matter of fact PC Aitken is not a danger to members of the public, female colleagues, or anyone else for that matter. We accept however that at the material time reasonable people such as Sarg Shaw and including Dr Fletcher who is a qualified doctor, were scared of him and whether their fear was justified knowing what we now know about the condition of OCD is off point. His behaviour was frightening.

192.

We find that the Respondent did not act on the basis of assumptions about mental illness, but they acted on the basis of how PC Aitken appeared to others. Unfortunately he gave the impression at times of having enormous difficulty in controlling his temper and, as we have seen at the Christmas social in 2005, scared his colleagues especially female colleagues.

193.

It is not therefore the case that the Respondent acted on the basis of assumptions about mental illness per se, it was about how the Claimant presented himself. This therefore does not meet the test of direct disability discrimination.”

Thus, on the complaint of direct disability discrimination, the ET found that the reason for his treatment was the objective view of his behaviour taken by his colleagues and the respondent. He presented himself to others as frightening. Neither his disability nor the perception of it were the reasons for the respondent’s treatment of him. He appeared to have difficulty in controlling his temper and behaved in a way that scared his colleagues, in particular female colleagues. The ET firmly rejected the submission that the respondent acted on the basis of stereotypical assumptions about mental disability. They acted on the basis of how he in fact presented himself to others.

As for the hypothetical comparator, the ET found that the respondent would have treated a person, whose relevant circumstances were similar, in an identical way. The complaint of less favourable treatment failed for that reason. His frightening behaviour was not stripped out of the characteristics of the hypothetical comparator, though his disability was. The ET made clear that the relevant circumstances, including abilities, would be appearing to be aggressive and potentially subject to uncontrollable anger and strong emotion, which was particularly threatening to women.

An employer discriminates against an employee where he fails to comply with a duty to make reasonable adjustments imposed on him by s.4A in relation to a disabled person: see s. 3A(2). The duty applies where the employee is placed at a substantial disadvantage compared to persons who are not disabled, by a provision, criterion or practice (“PCP” for short) applied by or on behalf of an employer. The test of reasonableness imports an objective standard: Smith v Churchills Stairlifts plc [2005] EWCA 1220; [2006] ICR 524 at [44] and [45].

As for reasonable adjustments the ET found that there was no breach of duty by the respondent in any of the respects complained of. The adjustments sought and which remain relevant on this appeal were as follows.

The first was that the respondent should establish that he was in fact a risk to colleagues or the public, so that they acted on the basis of knowledge, not out of ignorance, stereotypical assumptions or subjective fear. The ET rejected that adjustment, as it would not have prevented disadvantage to the claimant. It was necessary for a serving officer not to appear to be a risk to his colleagues and the public. The perception, as well as the actuality, presented that risk.

The second adjustment was that, if necessary, the claimant’s permission should be sought to give sufficient details to eliminate ignorance, assumptions or fear. The ET rejected this as impracticable in a working policing environment.

The next adjustment sought was removal of the requirement that the claimant not work with women. The ET rejected that on the basis of the evidence that the claimant intimidated and scared his female colleagues at the pre-Christmas party 2005, but added that in time it may no longer be necessary.

Finally, an adjustment was sought to the requirement that he be accompanied in all circumstances. The ET held that the requirement was appropriate when it was imposed in 2006, but that, on his return to work, it may no longer be necessary.

As for disability-related discrimination, the ET found that the claimant was not fit to work from 18 to 30 January 2007 or from 5 March 2007 and that the respondent did not fail to obtain adequate medical or psychiatric advice in seeking to effect an ill-health retirement.

The ET found that the Respondent did not treat the claimant less favourably for a reason that related to his disability than it treated or would treat comparable police officers. The claim was dismissed

The EAT dismissed all of the claimant’s grounds of appeal.

On the issue of direct discrimination the EAT upheld the ET’s rejection of the claimant’s case that the reason for the respondent’s treatment of him was a perception that he had a dangerous mental illness. The ET had made a clear and unchallenged finding of fact that the reason why the respondent acted in the way complained of was the seriousness of the pre-Christmas incident and fear of its repetition, not on the grounds of assumptions of mental illness. The treatment was based on how the claimant appeared to others. The EAT held that the ET did not err in failing to hold that treatment on the grounds of a perception of disability would have been for a reason relating to or on grounds of disability.

The EAT observed that the argument advanced on appeal that the claimant’s bad behaviour was so much part and parcel of his disability that action taken because of it should be regarded as taken on the grounds of disability was not advanced before the ET, or raised in the notice of appeal, or in the skeleton argument, or even in oral argument before the reply. The EAT said that such an argument would have required an evidential base to establish what conduct was and was not directly attributable to the claimant’s disabilities. Behaviour of the kind exhibited by the claimant at the pre-Christmas lunch was obviously not necessarily attributable to his disability. The ET did not err in failing to hold that the action taken by the respondent because of his bad behaviour was taken on the grounds of his disability.

On the comparator issue the EAT repeated its conclusion that the ET had not erred in failing to regard the claimant’s behaviour which gave rise to a fear of violence as his disability. The ET did not err in law in including bad behaviour as a relevant circumstance in making the comparison between how the claimant was treated and how a comparator would have been treated. The EAT concluded that the ET’s finding that the treatment of the claimant was not less favourable than that of a hypothetical comparator was fully supported by the evidence and not reached in error of law.

On the issue of reasonable adjustments the EAT held that the ET had not erred in dismissing the claim for discrimination based on failure to make reasonable adjustments. The EAT held that the ET, in assessing reasonableness of the adjustments, was entitled to have regard to the need that a police office should not appear to present a danger to colleagues or to the public. The ET was not confined in law to Dr Broadhead’s finding that the claimant in fact presented no risk.

The claimant asks the court to rule that the respondent did discriminate against him directly on the grounds of his disability and failed to make reasonable adjustments for his disability. The alternative submission is that those claims should be remitted to a fresh ET for determination.

It is submitted that both UK and EC law (Council Directive 2000/78) make unlawful discrimination on the grounds of a protected characteristic, and that that includes discrimination on the grounds of any necessary facet of such a protected characteristic. This is said to derive from a requirement that, in making the comparison to determine less favourable treatment, there must be excluded from the picture any circumstances which necessarily flow from the fact that one is comparing the case of a person with a protected characteristic with that of someone who does not have a protected characteristic. The cases of James v Eastleigh BC [1990] 2 AC 751 at 763-764 and Peake v Automotive Products Limited [1977] ICR 480 at 288 were cited in support.

It is submitted that the same approach applies in cases of “appearance”, such as the case of an applicant for the post of a shop assistant who is turned down on the ground of a severe facial disfigurement that would make other employees uncomfortable working alongside him. It is argued that other people’s negative reactions to, and perceptions of, a protected characteristic cannot be used as a non-discriminatory reason for treatment: see Watt v Ashan [2008] ICR at [40] and [47]. Further, the reason for the conduct complained of can include multiple factors and the protected characteristic need not be the only reason for that conduct as long as it is the effective cause.

It is also contended that under the Directive “on the grounds of disability” includes not just the disability itself, but also any limitations arising from physical, mental or psychological impairments.

It is submitted that the ET erred in law in deciding that the respondent acted on the basis of how the claimant appeared to others, not on the grounds of disability. The claimants’ colleagues and the Occupational Health doctors knew, or formed the impression, when they witnessed the claimant’s behaviour, that the claimant was suffering from a mental illness. His appearance was a direct and necessary facet of his mental disability, which caused colleagues to be concerned. The misunderstood appearance was a direct manifestation of the disability in question and could not be separated from it.

It is submitted that the grounds of the treatment of the claimant and the relevant comparator are interrelated in this case. The position is that the respondent acted on an incorrect understanding by the Occupational Health doctors and therefore by the respondent of the claimant’s disability of which it was aware. The appropriate comparator in this case was one which excluded the perception that he was frightening from the comparator and focuses on the fact that he was not in fact dangerous, could control his temper and could work with women. Thus the claimant ought to have been compared with a person who was able to control his temper and could work with women and was not dangerous. On that comparison he would have been found to have been treated less favourably.

The further point was made that, as the comparator should not have the claimant’s disability, so also the comparator should not have the characteristic of a necessary facet of the claimant’s disability. That meant that the frightening effect of the claimant’s behaviour should be removed from the characteristics of the comparator. It would then be found on a comparison that the claimant had been treated less favourably than the comparator would have been treated.

It is argued that the claimant was discriminated against on the grounds of his misperceived and misunderstood disability, if not on the grounds of his actual disability. What matter are the grounds on which the respondent was acting, not whether the claimant actually had the protected characteristic of disability. The decision of the Court of Justice in Coleman v Attridge Law [2008] ICR 1128 at [38] [43] [50] and [51], a case on the interpretation of the Directive in the context of “associative discrimination”, was cited in support of the approach to the interpretation of the 1995 Act and that it was unnecessary for the claimant to have an actual disability in order to be protected by the disability discrimination laws.

In this case it is argued that, if the true nature of the claimant’s disability had been properly explained by the Occupational Health doctors, various limitations on his working would not have been imposed. He was therefore treated less favourably on the grounds of a misperceived disability.

On the failure to make reasonable adjustments it is submitted that the ET erred in law in judging the reasonableness of the adjustments from the subjective and uninformed view of colleagues and occupational health doctors and from its own subjective point of view. The subjective flaw was seen in the fact that the PCPs applied were based on appearance and perception and led to the making of inappropriate requirements that the claimant must not be, or be perceived as being, a risk to the safety of himself, his colleagues or the public; that he should not work with women; and that he should be accompanied at all times.

If an objective test had been applied from 2005 when the respondent ought to have been aware of the claimant’s disability the respondent ought to have determined that he was not a risk to others or himself and should have educated his colleagues to this effect rather than removing him from working with women and requiring him to be accompanied.

The fact that the claimant was unable to work for periods ought not to have prevented the adjustments from being made in order to remove the stigma and misconceptions attached to him and the negative effects they had on him whether or not he was at work.

This court only has jurisdiction to set aside the decision of the ET if it made an error of law in the way in which it decided the issues presented to it by the parties. In the absence of exceptional circumstances, which are not present in this case, this court does not allow a party to raise an issue that was not raised in the ET, or to adduce fresh evidence on the issues that were raised.

The ET found that the reason for the respondent’s treatment of the claimant was not his disability, but the effects of his conduct on others and the fact that it was frightening. The claimant sought to argue for the first time on the appeal in the EAT that that treatment was “on the ground of” his disability, as his conduct was “a necessary facet” of his disability, that it was so much part and parcel of the disability that it could not be separated from it.

I agree with the EAT that it is not open to the claimant to raise this point for the first time in the course of an appeal limited to questions of law. It is incorrectly presented as a point of law arising on the construction of the 1995 Act and the Directive, but it is not a pure point of law. If the point had been raised in the ET, evidence would have been admissible about the relationship between his disability and his behaviour. There was no such evidence, as that point was not taken. If such a point is taken, it must be supported by evidence, not left to speculation and legal argument.

No useful purpose is served by a theoretical discussion on a legal point on which there was no evidence and therefore no relevant findings of fact. The submissions “on the ground of” and the effective cause of the respondent’s treatment of the claimant were based on the decisions in Clark v. Novacold [1999] ICR 951; Lewisham London Borough Council v. Malcolm [2008] 1 AC 1399; Stockton on Tees BC v Aylott [2010] ICR 127; James v Eastleigh BC [1990] 2AC 751; R (European Roma Rights Centre and others) v Immigration Officer at Prague Airport [2005] 2 AC 1; Watt (formerly Carter) & Ors v Ahsan [2008] ICR 82; and Rees v Apollo Watch Repairs plc [1996] ICR 466. Reference was also made to paragraphs in the Code of Practice. Unfortunately for the claimant the various legal points based on the authorities do not arise from the facts found by the ET, or the evidence on which the findings were made. The ET made no error of law in deciding that the respondent’s treatment of the claimant was not on the ground of his disability.

A similar factual foundation is lacking for the claimant’s submission that the characteristics of the hypothetical comparator should have excluded the claimant’s frightening conduct, because the disability must be excluded from the characteristics of the comparator and the claimant’s conduct was “a necessary facet” of his disability.

This case is distinguishable from the case of Aylott cited above and relied on by the claimant. In Aylott the ET found as a fact that the behaviour of the claimant, who suffered from bipolar affective disorder, had never in fact been threatening to his colleagues, that his treatment by the respondent council was the result of stereotypical views of mental illness and that the council’s treatment of him knowing of his disability provoked the behaviour which was then subject to a disciplinary investigation by the council. In those circumstances there was no error of law in the ET’s exclusion from the characteristics of the hypothetical comparator of particular behavioural results caused by the claimant’s disability.

The ET’s findings of fact in this case were that the claimant used aggressive words, behaviour and threats that were frightening to a reasonable person. The ET excluded the claimant’s disability from the characteristics of the hypothetical comparator, as required by the 1995 Act. The ET did not exclude the conduct of the claimant that concerned his colleagues. That conduct was not alleged or proved in the ET either to be, or to be part and parcel of, his disability. That was not an error of law on the part of the ET.

The submission that it is legally possible to discriminate against a person “on the ground of disability” in a case where there has been an incorrect perception of disability or a mistake as to the existence of an impairment constituting disability has no factual foundation in this case. It is unnecessary to attempt an answer to such questions as whether a person has to have an actual disability in order to succeed in a claim for disability discrimination, whether direct or disability-related and whether less favourable treatment on the ground of a wrongly perceived or imagined disability is unlawful discrimination contrary to the 1995 Act.

On the facts found by the ET this is not a case like Aylott where the employer acted on the basis of stereotypical assumptions about mental disability. The ET expressly rejected the claimant’s allegation that the respondent acted on the basis of assumptions about mental illness and about the nature of OCD. The ET found that the respondent acted on the basis of how the claimant appeared to others. That finding of fact is fatal to the contention that this is a case in which the claimant was treated less favourably in circumstances in which it was mistakenly believed as a result of his behaviour that he was suffering from an impairment constituting a disability that he did not in fact have. In those circumstances the arguments based on Coleman v Attridge Law [2008] ICR 1128 (ECJ) and [2010] ICR 242 (EAT) (associative disability discrimination); English v Thomas Sanderson Blinds Limited [2009] ICR 543 (alleged discrimination on ground of non-applicable sexual orientation); and J V DLA Piper LLP [2010] ICR 1052 at 1079H (alleged perceived disability) do not assist the claimant in establishing an error of law by the ET.

I am satisfied that no question of law arises from the ET’s decision on the claim based on alleged failure of the respondent to make reasonable adjustments for the claimant as a disabled person.

The claimant does not appeal against all the adjustments ruled against by the ET. Of those that remain it is important to bear in mind, first, that the ET’s finding of fact that the claimant’s behaviour appeared to be frightening and, secondly, that the question of what would be a reasonable adjustment is a matter of fact and degree.

It is argued on behalf of the claimant that he would no longer have been perceived as a risk to his colleagues or the public, if the respondent had adjusted its approach to his disability by establishing whether or not his disability in fact meant that he did pose a risk and by educating the claimants’ colleagues in relation to his conduct. There was no evidential basis for the assertion, nor was it self evident, that such an adjustment by the respondent would have meant that the claimant’s conduct would no longer be perceived as a risk by his colleagues or by the public with whom he would have contact in performing his routine role as a PC.

As for adjustments by removing the requirements that the claimant was not to work with women and was to be accompanied at all times, the ET was entitled to conclude that the restrictions applied to a PC, who appeared to be frightening, especially to women, were reasonable. It is in any event doubtful whether the removal of those restrictions is a matter of “adjustment” at all. The requirements are really relied upon as constituting acts of direct discrimination against the claimant. Those complaints were rejected for the reasons given above.

I would dismiss the appeal. There was no error of law in the judgment of the ET. The EAT was right to dismiss the claimant’s appeal.

I add three short comments on this case.

First, I would commend both the ET and the EAT for the sensible way in which they dealt with the detailed evidence and the various legal arguments. The danger in cases like this is immersion in evidence of peripheral relevance and in being carried off course by over-generalised and ingenious legal arguments that do not arise for decision on the facts. That did not happen here. The tribunals concentrated on the important areas of evidence and on fitting the basic framework of the legislation to the facts.

Secondly, although the ET had some criticisms of the medical recommendations received by the respondent from the Occupational Health doctors, who appeared to be unfamiliar with relevant standard guidelines for cases of OCD, I would commend the respondent for its concerns about the claimant’s health problems and about the welfare of his colleagues and the wider public. Its responsible management of a difficult workplace situation should be acknowledged. The respondent has shown a proper understanding of the humane values promoted by the legislation and of the importance of sensitively handling disability situations, both in deciding what can be done and how to do it.

Thirdly, users of the tribunal system in discrimination cases and their professional advisers are reminded that they need evidence to prove facts; they need facts on which to base legal submissions; and they need real, not imaginary, questions of law for an appeal to the EAT and to this court.