Mr M Lamb v The Chief Constable of West Midlands Police: 1301587/2015
| Judgment Date | 09 August 2017 |
| Subject Matter | Disability Discrimination |
| Date | 09 August 2017 |
| Citation | 1301587/2015 |
| Published date | 04 September 2017 |
| Court | Employment Tribunal |
Case No: 1301587/2015
EMPLOYMENT TRIBUNALS
Claimant: Mr Mark Lamb
Respondent: The Chief Constable of West Midlands Police
FINAL HEARING
Heard at: Birmingham On: 5, 6 (reading), 7-9, 12 (reading), 13-16, 19 & 20,
21 (reading), 22, 23 & 26 (deliberations) June 2017
Before: Employment Judge Camp Members: Mr R S Virdee
Mr P Talbot
Appearances
For the claimant: in person
For the respondent: Mr J Arnold, counsel
RESERVED JUDGMENT
The claimant’s entire claim fails and is dismissed.
REASONS
Introduction
1. The claimant, Mr Mark Lamb, is a serving Police Constable whose service
began in 2002. He has done no work for over 2 ½ years, having been signed
off sick by his GP on 11 December 2014. For most of that period, he has been
on full pay.
2. This kind of situation is not at all exceptional within the public sector; and yet it
should never happen.
3. Also for most of the last 2 ½ years, Mr Lamb has been pursuing this tribunal
claim. It is a claim of disability discrimination1 under the Equality Act 2010
(“EqA”) and of detriments for making protected disclosures – ‘whistleblowing’ –
under the Employment Rights Act 1996 (“ERA”). The claim form was presented
on 3 March 2015, following a period of early conciliation from 30 January to 24
February 2015.
4. Mr Lamb is a disabled person under the EqA because of depression. His case
is that his sickness absence in December 2014 was a reaction to a sustained
campaign of disability discrimination and of persecution for ‘blowing the
1 And, nominally, victimisation.
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whistle’; and that what is stopping him returning to work is an ongoing failure to
make reasonable adjustments for disability.
5. That case has failed. In particular, we have rejected as completely unfounded
Mr Lamb’s key allegation of a conspiracy to ‘do him down’. The alleged
conspiracy involved possibly a dozen or more officers, up to the rank of Chief
Inspector and including officers from the respondent’s Professional Standards
Department (“PSD”) and from a neighbouring police force. Their supposed
motivation was a desire to punish him as a whistleblower, to cover-up
wrongdoing, to protect the respondent’s reputation, and to protect a Constable
who is married to a high-ranking officer. There is no evidence of any substance
to support the allegation. Mr (and Mrs) Lamb’s strong and – we accept –
genuine conviction that the conspiracy exists is not evidence that it does.
6. We appreciate it is difficult for the respondent as an employer2 to know what to
do with an officer who is off on long-term sick and is making wide-ranging and
serious allegations of the kind Mr Lamb has been making. His tribunal claim
has no doubt been an additional complicating factor. This must be particularly
so given the length of time it has taken to get it to trial, something for which the
tribunal itself must accept some blame. It is, however, unacceptable that the
respondent was still not in a position to make an informed decision about Mr
Lamb’s future by the time of this final hearing, in June 2017.
7. There are broadly four scenarios. In the first, Mr Lamb is malingering and there
is no good reason for him being off work. The second is that, due to ill health,
there is no prospect of him returning to work for the foreseeable future. The
third possibility is that he is genuinely unable to return to work, but not because
of ill-health. The fourth scenario is that he would be able to return to work were
some form of adjustments made for him, and that what is preventing his return
to work is a failure to make those adjustments.
8. In the first three scenarios, Mr Lamb’s employment should have been brought
to an end by now, through disciplinary or capability proceedings or ill-health
retirement. In the final scenario, there may conceivably have been a breach of
the duty to make reasonable adjustments under the EqA. On the – inadequate
– evidence available to us, it is most likely we are in the third scenario; but it
remains possible we are in the fourth.
9. It appears the respondent has never seriously asked itself which scenario we
are in, nor sought in any concerted way to obtain the evidence it would need to
provide a definitive answer. This is a failing both as an employer and as a
recipient of scarce public resources.
10. The dispute between the parties needs to conclude; but at the moment there is
no obvious end in sight. This was a long trial, and it was preceded by
something like 10 or 11 preliminary hearings. We heard evidence from 13
witnesses: Mr and Mrs Lamb on one side and 11 individuals on the
respondent’s side, including three Inspectors, three Chief Inspectors, and one
2 The respondent technically does not, of course, employ officers like Mr Lamb; we are here using
“employer” and related words as a convenient shorthand.
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[Temporary] Chief Superintendent. There were other people who could usefully
have given witness evidence but who the respondent did not call, some
because they have emigrated to Australia and some for other reasons. Mr
Lamb’s statement alone was 161 pages long and Mrs Lamb’s 43 pages long.
The hearing bundles ran to around 2500 pages, although it was impracticable
to read more than a fraction of them. We deliberated for two days. We have
reached what we hope is a clear conclusion on all of Mr Lamb’s complaints. But
our Judgment does not bring finality, because he remains signed off sick, on
full pay, and the respondent is still not in a position to say with any certainty
whether there are things it could reasonably do that it hasn’t done that would
get him back to work.
11. The way the respondent operates is ill-suited to good HR decision-making in
tricky individual cases. There is no equivalent of an old-fashioned Personnel
Manager. There are people, such as Kim Lennard (a witness before us), who
deal with HR at a strategic, ‘macro’ level. But decisions relating to individual
officers all seem to be taken by their immediate line managers. In relation to
Police Constables like Mr Lamb, their immediate line managers are of course
their Sergeant and their Inspector. Sergeants and Inspectors cannot
reasonably be expected, even with advice from ‘Line Manager Advisers’, to
handle fully an employment situation as complex as Mr Lamb’s.
12. Someone within the respondent needs to take responsibility for Mr Lamb’s
case. That someone must have sufficient ‘clout’ and broad enough shoulders to
be able to make and push through (and live with the consequences of) hard
and potentially unpopular decisions. Preferably, they will have extensive HR
knowledge and experience and be sufficiently detached from these tribunal
proceedings to be able to be reasonably objective. Their task would be to
obtain the evidence that is needed to enable an informed decision to be made
about Mr Lamb’s future, and then to make that decision.
13. As for Mr Lamb himself, we very much doubt he will accept our verdict that
there has been no conspiracy against him; and we do not ask him to. He will,
then, be left in the position where he thinks there is deep-seated corruption
within the Police, which he has been the victim of, and which individual officers
have got away with by perjuring themselves in this tribunal. What he has to ask
himself is: if he really believes this, is he ever again going to be able to
stomach working as a Police Officer?
14. We don’t normally make introductory comments of this kind and of such length
in a set of Reasons, nor proffer advice. We do so here partly to comply with our
duty under rule 3 to encourage the resolution of disputes by using ADR, and
partly wearing an old-fashioned ‘industrial jury’ hat. As things stand, there is a
significant risk of another round of litigation between these parties. That would
benefit no one.
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