Hart v Chief Constable of Derbyshire Constabulary

For a probationary police constable, the duty to make reasonable adjustments does not require the chief officer to waive an irreducible minimum qualification standard. Where disability prevents the probationer from performing duties involving routine confrontation, restraint, arrest and detention, the officer may refuse an adjustment that would permit completion of probation and confirmation as a constable despite that inability. The distinction between a probationer and a qualified officer is material: adjustments may be available after qualification, but cannot require certification of competence which has not been demonstrated. In such a case, the particular-factor assessment under section 18B(1) of the Disability Discrimination Act 1995 does not arise. The refusal is justified under section 3A where the regulatory standard is material and substantial.

The appellant was appointed as a probationary police officer. During her probation she suffered injuries resulting in a continuing disability which prevented her from performing police duties routinely involving confrontation, restraint, arrest and detention. The Chief Constable terminated her probationary appointment.

The Employment Tribunal found that the proposed adjustment—offering a staff post so that she could complete probation and qualify as a constable—would require waiver of strict competency requirements under the Police Regulations 2003. It held that the treatment was justified under the Disability Discrimination Act 1995. The Employment Appeal Tribunal dismissed her appeal. The issue on the renewed application was whether the tribunals had erred in law by failing to assess the proposed adjustment by reference to the individual factors in section 18B(1).

1. Application refused. Permission to appeal from the Employment Appeal Tribunal required an arguable error of law with a reasonable prospect of success. The application did not satisfy that test.
2. The Police Regulations 2003, particularly regulations 12 and 13, established a material distinction between a probationary officer and a constable who had completed probation. Probation was intended to establish physical and mental fitness to perform the duties of a constable and the likelihood of becoming efficient and well conducted. Regulation 13 entitled the Chief Constable to dispense with a probationer’s services where that standard was not met.
3. The court accepted that reasonable adjustments can, in an appropriate case, involve modification of an existing job or provision of an alternative job, as recognised by Archibald v Fife Council [2004] ICR 954. That principle did not require the Chief Constable to certify the appellant as a competent constable when she could not perform an essential category of police duties. The requirements involving training and experience in confrontational situations constituted an irreducible minimum.
4. Because the proposed adjustment would have waived a strict qualification requirement, the tribunal was not required to conduct the broader individualised assessment relied on under section 18B(1) of the Disability Discrimination Act 1995. The Chief Constable was entitled not to lower the standard, and the resulting treatment was justified.
5. The qualifying-body provisions and statutory codes provided a permissible analogy, but the decision was principally governed by the police regulatory scheme. Neither tribunal had erred in law, and the Court of Appeal declined to entertain the matter merely because it raised an issue of general importance.

• Court of Appeal (Civil Division) — refused the renewed application for permission to appeal: [2008] EWCA Civ 929.
• Employment Appeal Tribunal — dismissed the appellant’s appeal in a reserved judgment dated 6 December 2007.
• Employment Tribunal, Nottingham — dismissed the claim in a decision promulgated on 12 June 2007.