Case Number: 3310944/2020
The legislation covering police staff in Northern Ireland is the Disability Discrimination Act 1995 (DDA).
This case was decided under the Equality Act 2010, which has not been enacted in Northern Ireland. Some of the provisions are very similar, however and I will focus on those.
The case is an example of how something very simple (allowing the Claimant to continue some of her outside business interest work), which was not very time consuming or costly for TVP would have made such a massive difference to the Claimant.
Reading Employment Tribunal found that;
1. The claimant’s complaint of discrimination arising from disability in relation to the withdrawal of permission for a business interest succeeds under S.15 Equality Act.
2. The claimant’s complaint of failure to make reasonable adjustments in relation to the application of the business interests policy succeeds under s.21of Equality Act.
3. The claimant’s complaint of constructive discriminatory dismissal succeeds under s.39 Equality Act.
The Equality Act and DDA are different in that there is no equivalent to s.15 claim in DDA. There are equivalent provisions under s.4(A)(1) for a failure to make reasonable adjustments and s. 4(1)(2)d regarding dismissal.
The Claimant was ultimately awarded £1,168,561 made up of:
• compensation for past financial losses of £26,977;
• interest on compensation for past financial losses of £4,334;
• compensation for future financial losses of £602,570;
• compensation for personal injury of £8,000;
• interest on compensation for personal injury of £1,541;
• compensation for injury to feelings of £18,000;
• interest on compensation for injury to feelings of £6,932;
• grossing up for taxation of £500,207.
The Claimant will receive over £650,000 net.
The Claimant had a history of PTSD, depression and anxiety. She sought approval for an outside business interest (OBI) to aid her mental health issues.
She described the nature of the work as being to ‘provide decorated themed indoor and outdoor tents for hire’. She estimated that she would spend 8 hours a week on the business.
She was a sergeant from 9 May 2004 until her resignation on 27 March 2020.
After a period of sickness absence in May 2019, TVP revoked her OBI. TVP criticised the Claimant for working on her OBI and making money in a public way, whilst being off sick on full pay. The Claimant appealed the decision and explained that the OBI was therapeutic as it distracted her from her traumatic experiences. For her mental health, the Claimant accessed TVP’s occupational health who paid for treatment.
In September 2019, TVP’s anti-corruption unit discovered she was still undertaking her OBI.
On 1 October 2019, the Claimant returned to work. On 4 October 2019, she was charged with misconduct by professional standards department (PSD) for continuing her OBI. This really upset the Claimant and caused her to go off sick.
In December 2019, PSD informed her there was a case to answer for breaches of (1) honesty and integrity and (2) orders and instructions.
On 14 January 2020, the Claimant resigned citing 3 reasons. One of which was PSD’s investigation into her.
The Tribunal found that the application of the Business Interest Policy was a Provision, Criteria or Practice (PCP) and that the PCP put her at substantial disadvantage compared with people who do not have her disability.
The Claimant was more likely to need to take time off work on sick leave than a person who does not have her disability. The need to take time off work on sick leave meant that the Claimant was more likely to have her business interest withdrawn, than a person who does not have her disability.
Having found there was a PCP that caused her substantial disadvantage, there was then a positive duty on TVP to make reasonable adjustments to reduce or alleviate that disadvantage.
The Tribunal found that a reasonable adjustment was allowing her to continue with the aspects of her OBI that were not public facing.
The Tribunal found that the Misconduct Procedures were also a PCP but that she had not shown that she was put at a substantial disadvantage by her disability in respect of the conduct procedure. Therefore, there was no reasonable adjustments required.
The Tribunal found that the Claimant was forced to resign by TVP’s conduct i.e. revoking the OBI and not making a reasonable adjustment which was a constructive dismissal. The withdrawal of her business interest and the refusals to reconsider, exacerbated her anxiety, panic and depression symptoms.
The Claimant successfully argued that TVP’s actions ended her police career. The Claimant relied on jointly expert evidence to demonstrate what she would have received but for the discrimination. The Tribunals assessment of compensation for future loss involves some degree of speculation to award the sums that would put the claimant in that position.