Buchanan v Commissioner of Police of the Metropolis
The Claimant was a police motorcyclist who had an accident when responding to an emergency call whilst on duty. The Claimant developed post-traumatic stress disorder and was unable to return to work. After being absent from work for 8 months, the Claimant began to receive a series of notices from the Respondent. The notices were served on the Claimant under the Unsatisfactory Performance Procedure (“UPP”); a performance management system prescribed under the Police Performance Regulations 2012 (the “Regulations”). The notices required the Claimant to return to work.
The Claimant stated that the UPP could not be justified and criticised the way UPP operated. Additionally, the Claimant challenged the points under UPP at which the notices were served, which required the Claimant to return to work when he was incapable of doing so due his post-traumatic stress disorder. The Claimant also argued that the Respondent should not have persisted with pursuing UPP and if the Respondent had felt it was necessary to pursue, this should have been done in a more measured way.
Following this, the Respondent argued that UPP was a proportionate means of achieving a legitimate aim and that serving the notices on the Claimant was therefore justified.
The Employment Tribunal agreed.
The claim progressed to the Employment Appeal Tribunal (“EAT”) and the key question for consideration was whether, in a claim for discrimination arising out of disability, the application of UPP had been objectively justified. The justification test arises under section 15 of the Equality Act 2010 (“EqA 2010”).
The EAT found that the demands were not mandatory under UPP or the Regulations and the Respondent should have been required to justify the specific treatment towards the Claimant. The EAT further held that the procedure laid down in UPP and the Regulations required for there to be an individual assessment in each case, at each stage of the procedure. The case has been remitted to the Employment Tribunal for the justifications to be considered again.
The EAT decision demonstrates the approach which should be taken under the EqA 2010 in relation to long-term sickness absence.