Employment Flash - 23rd June 2010

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Liability for direct discrimination based on the employer's perception that the claimant has a disability? No...

Aitken v The Commissioner of the Metropolis [2010] UKEAT 0226 09 ZT

You wait for one case on perception of disability and then two come along (almost) together (see J v DLA Piper, employment flash 18.6.10). A, a police officer with the Met, suffers from obsessive compulsive disorder and had a tendency to drink excessively. At a Xmas party in December 2005 he made a variety of remarks to other officers that left them feeling very uncomfortable and with a perception that A had mental health problems that scared them to such extent that the party was curtailed. The event was reported. A had little recollection of events. A received words of advice from the Borough Commander, was put on special leave and was referred to Occupational Health. The consultant thought A might be fit to return to work but required a risk assessment, avoiding work with the public and close management supervision. A did return to work. A Consultant Psychiatrist did not consider him to be actually dangerous but he was quite blunt speaking and careless of causing offence, but should have his hours of work extended. There were subsequent incidents that gave cause for concern and further medical referrals. The Consultant Occupational Health Consultant was not confident that the psychiatrist's view that A was not dangerous actually represented his current condition in April 2006. NICE recommend that people with OCD should be seen by mental health professionals with specific expertise in that area. The consultant was aware of A's OCD diagnosis and the NICE guidance but did not follow it. The Consutant Forensic Psychiatrist A was referred to indicated A was not suited to a frontline job. Eventually the Borough Commander decided that medical retirement was the way forward. The Selected Medical Practitioner recorded OCD, alcohol abuse and an unpredictable aggressive attitude; the OCD was likely to be permanent but whilst A was disabled from performing the duties of a member of the Police Force he could probably manage an office based job with minimal contact with members of the public. M decided to retire A on medical grounds. A issued his first ET1. The Medical Appeal Board allowed A's appeal believing that A would probably recover sufficiently to carry out normal police duties. The occupational health consultant still considered that he was unfit to return to work. A issued his 2nd ET1. The ET dismissed A's claims.

One ground of appeal from the ET was that it had failed to exclude discrimination on the grounds of perceived disability. A submitted that the effect of Council Directive 2000/78 was that less favourable treatment on the ground of a fear, belief, perception or assumption that A has a type of mental illness that, in the event, he does not have, is prohibited. A relied on Coleman v Attridge Law [2008] ICR 1128 (discrimination by association with someone who has a disability) and that one of the effects of Coleman was that HM Prison Service v Johnson [2007] IRLR 951 (the disability to which the discrimination relates must be one from which the claimant is suffering, so that in principle a reason for action relating to a believed disability is not caught if the claimant was suffering from a different disability) was no longer good law.

The EAT recognised that from the way the arguments had proceeded any argument as to whether action taken on the grounds of a perception of mental illness is direct discrimination was academic in relation to A's appeal. However, it did not accept that Coleman supported the proposition that action taken on the basis of a mistaken perception that a claimant is suffering from a particular disability falls within the scope of the directive. Coleman established that where an employee without a disability is treated less favourably and that treatment is based on the disability of a person for whom care is provided primarily by that employee then such treatment is prohibited by the directive. Under DDA the relevant characteristic must be related to the claimant (ss.3A(1)(a); 3B(1)), it has to be an actual disability (s.1(2)). Coleman did not rule that a perception of disability was within the scope of the directive and parity of reasoning with Coleman did not have the effect of bringing 'perception of disability' within the meaning of the directive or the DDA.

For those wanting more on discrimination see Discrimination Law Review by Ceri Widdett and Catherine Knowles (apologies to CK for not mentioning her in last week's employment flash).