Aitken v The Commissioner of Police of the Metropolis

On an appeal confined to questions of law, a new argument requiring evidence and factual findings cannot ordinarily be raised for the first time. For direct disability discrimination, treatment based on the frightening effect of a claimant’s conduct, rather than disability or a perception of disability, is not treatment on the ground of disability. Disability must be excluded from the hypothetical comparator’s characteristics, but conduct may remain relevant unless it is proved to be part of the disability. The reasonableness of adjustments is an objective question of fact and degree. It may take account of perceived workplace risk, not only actual danger. The court left questions about wrongly perceived disability undecided where the facts did not raise them.

Brian Aitken, a disabled former police officer, appealed from the Employment Appeal Tribunal’s dismissal of his appeal against the Employment Tribunal’s unanimous rejection of claims for direct disability discrimination and harassment, failure to make reasonable adjustments, and disability-related discrimination. The claims concerned treatment by the Metropolitan Police Service between December 2005 and August 2008.

The EAT decision was given on 21 June 2010 in UKEAT/0226/09/ZT. The central issues were whether treatment based on frightening conduct was on the ground of actual or perceived disability, whether the conduct should be excluded from the hypothetical comparator as a necessary facet of disability, and whether the proposed adjustments were reasonable.

1. Appeal dismissed. The Employment Tribunal had made no error of law, and the Employment Appeal Tribunal was right to dismiss the claimant’s appeal.
2. The Court of Appeal’s jurisdiction was confined to errors of law on issues presented to the Employment Tribunal. The proposed argument that the claimant’s conduct was a necessary facet of his disability was not a pure point of law. It required evidence about the relationship between the disability and the conduct, on which the Tribunal had made no findings. The argument could not therefore be raised for the first time on appeal.
3. The Tribunal had found that the respondent acted because the claimant’s conduct appeared frightening to colleagues, not because of his disability or assumptions about mental illness. That finding supported the conclusion that the treatment was not on the ground of disability under the Discrimination Disability Act 1995.
4. For the hypothetical comparator, the Tribunal properly excluded the claimant’s disability but retained his aggressive and frightening conduct as a relevant circumstance. The conduct had not been alleged or proved before the Tribunal to be, or to be part and parcel of, the disability. Stockton on Tees BC v Aylott was distinguishable because its factual findings involved stereotypical assumptions about mental illness and behaviour that was not in fact threatening.
5. The reasonableness of adjustments was an objective question of fact and degree. The Tribunal was entitled to consider the claimant’s frightening presentation and the perceived risk to colleagues and the public. There was no evidential basis for concluding that educating colleagues or removing restrictions would eliminate that perception. The restrictions on working with women and being accompanied were reasonably imposed, although the court doubted whether their removal was properly characterised as an adjustment rather than a direct-discrimination complaint.
6. The court did not decide whether discrimination based on a wrongly perceived disability could be unlawful, or whether actual disability was required. Those questions lacked a factual foundation in this case. The arguments based on Coleman v Attridge Law, English v Thomas Sanderson Blinds Limited and J V DLA Piper LLP did not establish an error of law.

• Court of Appeal (Civil Division): Appeal dismissed; the Employment Tribunal made no error of law. [2011] EWCA Civ 582.
• Employment Appeal Tribunal: Appeal dismissed on 21 June 2010. UKEAT/0226/09/ZT.
• Employment Tribunal: After an eight-day hearing, the claimant’s discrimination claims were unanimously rejected on 23 February 2009.