Aitken v. The Commissioner of Police of the Metropolis

Direct discrimination under the Disability Discrimination Act 1995 requires treatment for a reason relating to, or on the ground of, the claimant’s actual disability. A mistaken perception of disability is insufficient, although disability may be that of an associated person. In the statutory comparison, disability is removed from the equation, but conduct connected with disability remains a relevant circumstance. A police employer may consider the need for an officer not to appear to present a danger when assessing reasonable adjustments. The appeal was dismissed.

A police constable with OCD, depression, anxiety and other conditions brought claims of direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments. The Employment Tribunal dismissed the claims, finding that the employer had acted because of the claimant’s behaviour and its apparent risk, rather than assumptions about mental illness, and that the restrictions imposed were not unreasonable.

The appeal challenged the approach to perceived disability, the hypothetical comparator and the assessment of reasonable adjustments, relying in part on the finding that the claimant was not in fact dangerous.

1. Appeal dismissed. The Employment Tribunal found that the employer acted because of the seriousness of the Christmas Social incident, fear of repetition and how the claimant appeared to others. The alleged issue of perceived disability was therefore academic, and the reasons were adequate.
2. Sections 3A(1) and 3A(5) of the Disability Discrimination Act 1995 require the impugned treatment to be for a reason relating to, or on the ground of, an actual particular disability. Coleman concerned discrimination based on the actual disability of a person associated with the employee. It did not extend the Directive or the Act to mistaken perceptions of disability. HM Prison Service v Johnson was not displaced.
3. The argument that the claimant’s bad behaviour was part and parcel of his disability had not been advanced below and would have required findings identifying conduct attributable to the disability. On the evidence, the Employment Tribunal was entitled to treat the behaviour as an effect connected with disability, rather than the disability itself.
4. For the statutory comparison, disability is removed, but the comparator must have the same or materially similar relevant circumstances. The claimant’s aggressive and threatening behaviour was therefore properly included. London Borough of Lewisham v Malcolm supported that approach.
5. Under section 4A, reasonableness had to be assessed in context. The Employment Tribunal was entitled to consider that a serving police officer must not appear to present a risk to colleagues or members of the public. The later finding that the claimant was not actually dangerous did not require the restrictions to be treated as unreasonable.

All grounds of appeal were dismissed.

• Employment Tribunal: dismissed the claimant’s disability discrimination and reasonable-adjustments claims in a judgment registered on 23 February 2009.
• Employment Appeal Tribunal: dismissed the appeal after a full hearing on 16 and 17 February 2010; judgment delivered on 21 June 2010.