Hinsley v West Mercia Constabulary

For the purposes of a reasonable-adjustment duty, an employer may be required to alter normal appointment or recruitment processes where that is reasonable in the circumstances. A statutory scheme does not prevent such an adjustment merely because it contains no express provision for reinstatement or re-engagement, provided that it contains no prohibition and the proposed appointment can comply with the applicable requirements. The duty is assessed by identifying the provision, criterion or practice, the appropriate comparator, and the substantial disadvantage, followed by an assessment of the reasonable steps required to prevent that disadvantage.

The claimant, a probationary police constable, resigned from the West Mercia Constabulary. After her resignation took effect, she was diagnosed with depression and asked to withdraw it and return to the force without undergoing the ordinary appointment process.

The Employment Tribunal dismissed her complaint under section 16A of the Disability Discrimination Act 1995. It held that the Chief Constable lacked power under the Police Act 1996 and the Police Regulations 2003 to reinstate or re-engage her. The central issue on appeal was whether that perceived statutory and regulatory bar existed.

1. The appeal was allowed. The Employment Tribunal had correctly identified the relevant provision, criterion or practice as the rule that a police officer whose resignation had taken effect could not be reinstated or re-engaged, and the substantial disadvantage arising from its application to a person whose depression made an irrational resignation more likely.
2. Under section 16A of the Disability Discrimination Act 1995, once the duty is engaged, the tribunal must assess what steps are reasonable in all the circumstances to prevent the disadvantage. The statutory approach described in Environment Agency v Rowan [2008] IRLR 20 was adopted.
3. The absence of an express provision in the police legislation permitting reinstatement or re-engagement did not establish a prohibition. The claimant could be re-appointed subject to the applicable probationary requirements under regulations 10 and 12 of the Police Regulations 2003. On the Tribunal’s findings, returning her without requiring a fresh application from the beginning would have been a reasonable adjustment, analogous to dispensing with a competitive interview where that was necessary to accommodate disability, as recognised in Archibald v Fife Council [2004] IRLR 651.
4. No further evidence or findings were required. Following the approach referred to in Buckland v Bournemouth University [2010] IRLR 445, the EAT substituted a finding that the section 16A complaint was made out and remitted the question of remedy to an Employment Tribunal appointed by the Regional Employment Judge.

• Employment Appeal Tribunal — allowed the appeal against the Shrewsbury Employment Tribunal’s judgment, reversed its finding on liability, upheld the section 16A complaint, and remitted remedy.
• Shrewsbury Employment Tribunal — by judgment with Reasons promulgated on 28 January 2010, dismissed the disability-discrimination complaint.