Brian Aitken v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Rix,Lord Justice Patten |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWCA Civ 582 |
| Date | 18 May 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2010/1690 |
[2011] EWCA Civ 582
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MRS JUSTICE SLADE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rix
and
Lord Justice Patten
Case No: A2/2010/1690
MS JILLIAN BROWN (instructed by Messrs Russell Jones & Walker) for the Appellant
MR DIJEN BASU (instructed by Metropolitan Police Service (Legal Services)) for the Respondent
Hearing date: 2 nd March 2011
Introduction
This is an appeal from the order of the Employment Appeal Tribunal (EAT) dated 21 June 2010. The EAT dismissed an appeal by Mr Brian Aitken (the claimant). He is a former police officer, who is disabled "on account of his OCD [Obsessive Compulsive Disorder], bowel and digestive problems, depression and anxiety including an element of agoraphobia."
His unsuccessful appeal to the EAT was from the unanimous rejection (after an 8 day hearing) by the Employment Tribunal (ET) on 23 February 2009 of his claims against the Metropolitan Police Service (the respondent) (a) for direct disability discrimination and harassment, (b) for breach of the duty to make reasonable adjustments and (c) for disability-related discrimination. The discrimination was alleged to have taken place while he was a police officer in the period between December 2005 and August 2008. (As the ET found that the claimant had not been discriminated against, it did not decide whether all the matters complained of were brought within the prescribed time limits).
I granted permission to appeal on 10 August 2010 on the basis of the claimant's skeleton argument, which deployed a range of legal points on the interpretation and application of the disability discrimination legislation. The points appeared to be reasonably arguable and the law in need of some clarification. The application for permission to appeal was accompanied by a lengthy agenda of issues and detailed submissions on the proper scope of the expression "on the grounds of disability" and on the test for direct disability discrimination in both UK and EU law; on whether, in particular, less favourable treatment on the ground of a "necessary facet of a disability" amounts to direct disability discrimination; on whether liability for direct discrimination can arise from a "perceived disability", such as might occur when the reason for the less favourable treatment of a claimant was a mistaken belief that the claimant has a disability, or a misperception of an actual disability; on the persistent problem of how to construct an hypothetical comparator in direct discrimination cases and, in particular, on whether the characteristics of the comparator should exclude not just the disability itself, but also the conduct of the disabled employee, if that conduct was a "necessary facet" of his disability; on whether, on the claim for failure to make reasonable adjustments, account was properly taken of "necessary facets" of his disability; and on whether there was a misunderstanding of his disability and a subjective view taken of it and its effects.
At the hearing the court received very full written and oral arguments from both sides covering these legal topics. Ultimately, this appeal is, in my judgment, narrower in scope than was initially envisaged by me or the parties. In view of the way in which the case on behalf of the claimant was actually put in the ET and in view of the firm unchallenged findings of fact on the issues presented to it, the main question in disposing of this appeal is whether most of the legal points need to be decided at all.
This court should not be drawn by the claimant into unnecessary speculation about what the law would be, if only the ET had found the facts differently. If I had realised that the third round of these proceedings would be more mooty than meaty, I would never have granted permission for an appeal from which, for the reasons that follow, neither party has derived any benefit.
This court became all the more concerned about the point of this appeal when it was told for the first time, in answer to questions about the claimant's current situation, that between the hearing and the decision in the EAT last year he retired from the Force pursuant to the statutory regime applicable to police officers, an independent medical practitioner having determined, as part of that regime, that he was permanently disabled from performance of his duty. Retirement was with effect from 28 April 2010. Of itself retirement may not have deprived the claimant of his right to relief for past discrimination or have affected the outcome of the appeal: but, in my opinion, this court ought to have been put in the picture by the claimant's representatives either when the permission application was made, or, if not then, before the hearing took place. This court should be updated on what appears to be an ongoing situation in order to ensure that the appeal has not become academic or hypothetical.
Throughout this litigation Mr Dijen Basu has acted as counsel for the respondent. Ms Jillian Brown, who is counsel for the claimant in this court, did not appear either in the ET or in the EAT.
Outline facts
Mr Aitken became a probationary police constable with the Metropolitan Police Service in the London Borough of Southwark, which had a high crime rate, on 12 August 2002. He was confirmed as a police officer on 7 May 2004. From the start he had intermittent absences for minor ailments. From 28 June 2005 to 3 November 2005 he was on sick leave for depression. The ET found that from about June 2005 onwards he was unable to perform the role of a police officer (see paragraph 175). He was drinking heavily and had recently split up with his girlfriend. He had counselling sessions. A gastro-enterologist, to whom he was referred, found that he had a tendency to binge drink. OCD and anxiety were diagnosed by a counsellor in sessions of Cognitive Behavioural Therapy.
On 14 December 2005 a pre-Christmas social event was arranged for the Crime Management Unit and the Telephone Investigation Bureau. It started with a lunch at an Italian restaurant attended by about 15 people. The party continued in various pubs. The Christmas Social marked the start of the period during which Mr Aitken alleges that he was the victim of disability discrimination. The claimant, who was taking Prozac, ate little and drank heavily. He behaved inappropriately to other police officers present on that occasion: he made intimidating and aggressively sexist remarks to a woman PC; he said of a female officer who left that he wanted to punch her and break her nose; he said that he had strange thoughts about beating his girl friend's head in with a baseball bat; he repeatedly shouted "shut up" aggressively at a pregnant officer, who was discussing her pregnancy with a colleague; he squeezed the hand of one male officer to the point of painfulness and put the arm of another officer in a "goose neck" position; he aggressively told a colleague to "fuck off"; he was intermittently extremely angry and aggressive and increasingly anxious and threatening as the afternoon wore on; and he continued drinking heavily. His colleagues became increasingly uncomfortable and concerned about his mental health, his apparent instability and his inability to control aggressive tendencies. The ET found that his behaviour was appalling and that it constituted gross misconduct.
On his return to work the claimant, who had little recollection of the Christmas Social, was placed on special leave and directed to be seen by the Chief Medical Officer. He remained on special leave until after he had a meeting with Dr P Fletcher, a Consultant Occupational Health Physician and Chief Medical Officer. It was decided that he would remain on special leave until the medical reports from the specialists were obtained. It was also decided to move him to assist with office management, telephone enquiries and administration duties and it was arranged that he would return to work on 23 January 2006.
On 26 January 2006 he saw Dr R Oxlade, a Consultant Physician, who noted his binge drinking and excessive caffeine drinks, his depression and OCD symptoms, but did not consider him actually dangerous. Mr Aitken's manager, DI Dave Willis, who was found to have been a careful and caring manager to the claimant, formed the view in February 2006 that Mr Aitken was suffering from a serious mental condition and considered him to be potentially dangerous.
On 10 February 2006 Dr Fletcher CMO assessed Mr Aitken as fit for restricted/recuperative duties only and for an office-based role involving no public contact. On his return to the office Mr Aitken was very anxious. In a chat on 17 February 2006 he appeared to DI Willis to have enormous difficulty in controlling himself. DI Willis was concerned at his behaviour and sent him home. Later in February he recorded his concerns in writing to Superintendent Vincent, who copied them to Human Resources. DI Willis referred to the claimant stretching both arms out with clenched hands and having a fixed stare in his eyes, adding that, although he did not feel threatened, other staff could easily be. He said that he could only describe the claimant's actions "as something like the Incredible Hulk did before bursting out of his clothes."
In March 2006 the claimant telephoned his ex-girlfriend Vicki about 20 times and was abusive to her. She told him that she would call the police if...
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