Edgar vs Chief Constable of the Police,Gerry McGrath,Kerrie Greer
| Jurisdiction | Northern Ireland |
| Judgment Date | 23 July 2021 |
| Docket Number | 16311/18IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Chief Constable of the Police,Gerry McGrath,Kerrie Greer |
THE INDUSTRIAL TRIBUNALS
CASE REF: 16311/18
CLAIMANT: John Kevin Edgar
RESPONDENTS: 1. Chief Constable of the Police Service of Northern Ireland
2. Gerry McGrath
3. Kerrie Greer
JUDGMENT
The unanimous judgment of the tribunal is that the claimant’s claim is dismissed.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Tiffney
Members: Mr A White
Mr I Carroll
APPEARANCES:
The claimant was self-represented.
The respondent was represented by Ms N Murnaghan, Queens Counsel and by Ms N Fee, Barrister-at-Law, instructed by the Crown Solicitor’s Office.
THE CLAIM
- On 16 October 2018 the claimant presented a claim to the tribunal claiming disability discrimination against the three above named respondents on the ground of the respondents’ alleged failure to make reasonable adjustments in relation to his role as a Part-Time Reserve (“PTR”) Police Officer
- The claimant contended that he is a disabled person as defined in section 1 and schedule 1 of the Disability Discrimination Act 1995 as amended (“the DDA”) by virtue of a back condition which is recurring in nature. The claimant further claimed that the first respondent acknowledged this fact from 20 October 2017 when the claimant was assessed by the first respondent’s Occupational Health Advisor and that the first respondent had constructive knowledge that the claimant was a disabled person from 22 August 2017 when the claimant first alerted his line manager of his inability to perform PTR duties due to his back condition
- The tribunal clarified with the claimant his reference to victimisation in paragraph 33 of his witness statement. However the claimant stated that this reference did not relate to victimisation in the legal sense but rather was purely a remark relating to his claim of a failure to make reasonable adjustments.
- On the third day of the hearing the claimant advised the tribunal that he was no longer pursuing this claim against the second and third named respondents. Therefore the claims against the second and third named respondents are dismissed having been withdrawn by the claimant at the hearing and the claim continued against the first respondent (hereinafter referred to as “the respondent”).
THE RESPONSE
- The respondent denied that it failed in its duty to make reasonable adjustments. The respondent asserted that adjustments were made to the claimant’s PTR duties which were reasonable in all of the circumstances.
- Although in its response the respondent disputed that at all material times the claimant’s back condition rendered him a disabled person for the purposes of the DDA it subsequently conceded this point and confirmed this to the tribunal at a Case Management Preliminary Hearing (CMPH) on 12 August 2020. Therefore the tribunal did not need to determine this issue in light of the respondent’s concession.
- The respondent raised a time limitation point in its response. Counsel for the respondent confirmed at the outset of the hearing that the respondent was no longer pursuing this point.
- The respondent accepted that over the entire period of claim the duty to make reasonable adjustments was triggered. However the respondent maintained that it did not possess the requisite statutory knowledge set out in section 4A(3)(b) of the DDA; specifically knowledge of the claimant’s disability until 20 October 2017 when the claimant was first assessed by the respondent’s Occupational Health Advisor. At this point the respondent accepted that it acquired constructive knowledge of the claimant’s disability. Therefore the respondent relied on the statutory exemption in section 4A (3) of the DDA to argue that until 20 October 2017 the respondent was exempted from complying with its duty to make adjustments as it did not possess the requisite statutory knowledge.
REASONABLE ADJUSTMENTS/SPECIAL ARRANGMENTS
- The claimant informed the tribunal at a CMPH on 12 August 2020 that due to his back condition he may need to change his seated positon and/or take periodic breaks from the hearing to take brief walks. These adjustments were facilitated by the tribunal but were not required by the claimant.
ISSUES
- There were a number of versions of the list of agreed issues in dispute. Due to changes in the respondent’s response to these proceedings outlined above, the issues in dispute were refined significantly by the time of the hearing and were refined further at the submissions hearing. In light of this the parties confirmed to the tribunal at the outset of the hearing (and at the outset of the submissions hearing) that the issues for determination were as follows;
- Whether the respondent had the requisite knowledge of the claimant’s disability from 22 August 2017 as contended by the claimant or from 20 October 2017 as contended by the respondent?
- Whether the respondent complied with its duty to make reasonable adjustments in relation to the claimant in light of the substantial disadvantage the claimant was placed in comparison with persons who are not disabled due to the respondent’s application of the identified PCP, in accordance with section 4A of the DDA?
- If not, what is the appropriate remedy?
- The parties agreed that the only provision, criterion and/or practice (hereinafter referred to as the “PCP”) was the directive issued by the Deputy Chief Constable (DCC) Harris in circa April 2015 that the duties offered to members of the PTR be confined to three prescribed categories of operational duty with no discretion afforded to the respondent to deviate from these prescribed categories of duty. This PCP, referred to herein as “the Harris directive”, is set out in more detail at paragraph 52 below. The respondent sought to introduce an additional PCP in its written submissions but withdrew this at the submissions hearing and lodged revised written submissions to reflect the withdrawal.
- The claimant relied on a hypothetical comparator identified as being any other non-disabled PTR officer and the respondent accepted this. The respondent accepted that the claimant was placed at a substantial disadvantage by the Harris directive due to his disability. The parties agreed that the Harris directive placed the claimant at a substantial disadvantage in two respects; his ability to meet the statutory minimum of 144 hours duty per annum and his ability to earn money in his PTR role.
- Consequently it is undisputed that subject only to this discrete knowledge issue, the singular question in relation to liability is whether the respondent complied with its duty to make reasonable adjustments.
- The parties agreed that the relevant period of time over which this claim relates is the summer of 2017 to the date of submission of the claimant’s claim on 16 October 2018. Despite this, both parties referred in their evidence, document references and submissions, to matters that post-date this period. Their relevance was clarified by the parties at the outset of the hearing and further clarified and refined at the submissions hearing. The relevant references related to the respondent’s application of its Managing Staff with Disabilities policy to the claimant.
- The respondent maintained this matter was relevant to its assertion that it did not fail in its duty to make reasonable adjustments and to the claimant’s claim for ongoing financial loss.
- The claimant was clear that he understood that alleged discrimination occurring after the date of claim should be raised via a new claim form. The claimant clarified this matter was not part of his discrimination claim but illustrated the steps that the respondent should have taken during the period of claim to engage with him about his disability, its impact on his ability to perform his PTR role and in order to properly consider reasonable adjustments.
- Therefore whilst not specified in the agreed list of issues the tribunal was required to make findings of fact in relation to this matter but limited to the parameters identified by the parties.
MODE OF HEARING
- All of the evidence was heard at an in-person hearing. The submissions hearing was delayed due to the Covid-19 pandemic and associated closure of the tribunal building. In view of on-going...
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