Buchanan v The Comr of Police of The Metropolis

For discrimination arising from disability, the justification defence ordinarily requires the tribunal to assess the specific unfavourable treatment relied upon. Where treatment results directly from applying a rigid rule or policy, justification of that rule will usually suffice. Attendance-management procedures commonly allow discretion and individual assessment, so each challenged step may require separate proportionality assessment. The tribunal must consider the employer’s legitimate aims, the relevant policies, the statutory context and the impact on the individual. A statutory-authority defence applies only to acts required by an express statutory obligation, not acts undertaken pursuant to a statutory power or discretion.

The claimant, a police officer disabled by post-traumatic stress disorder following an accident, was subjected to stages of the Unsatisfactory Performance Procedure under the Police (Performance) Regulations 2012. The Employment Tribunal found that six steps constituted unfavourable treatment because of something arising from disability.

By a majority, the Tribunal held that the procedure, rather than its individual application, had to be justified and dismissed the complaint. The claimant appealed. The central issue was whether section 15 required assessment of the particular treatment or merely of the underlying procedure and policies.

1. Appeal allowed and case remitted. The Employment Tribunal had to reconsider justification under section 15(2) in relation to each of the six steps found to be unfavourable treatment arising from disability.
2. Section 15(2)(b) focuses on whether “the treatment” is a proportionate means of achieving a legitimate aim. The tribunal must identify the act or omission constituting the treatment and assess that act or omission.
3. Where treatment is the direct result of applying a general rule or policy, justification will usually depend on the justification of that rule or policy. Seldon v Clarkson Wright & Jakes [2012] ICR 716 was such a case. Attendance-management procedures, however, commonly allow responses to individual circumstances, particularly where disability requires allowances or adjustments.
4. The Police (Performance) Regulations 2012 and the respondent’s policies allowed discretion, including whether to commence a stage, whether to adjourn or postpone, and how to address disability-related absence. The challenged steps were not mandated by the Regulations or policies. It was therefore insufficient to ask whether the general procedure was justified.
5. The Tribunal could consider the policies, the statutory requirement for a procedure before capability dismissal, the employer’s aims and the effect of each step on the claimant. The aims might include attendance management, support, medical discharge, fair termination and support for officers injured on duty. The assessment had to avoid assuming a mechanistic requirement to progress through the procedure.
6. Crime Reduction Initiatives v Lawrence UKEAT/0319/13, and the references to outcome rather than process in Swansea University v Williams [2015] ICR 1197 and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, concerned treatment consisting of the outcome. They did not preclude assessment of procedural steps where those steps themselves were the detriment.
7. The statutory-authority defence under section 191 and Schedule 22, paragraph 1 of the Equality Act 2010 did not apply. The acts relied upon were not done in necessary performance of express statutory obligations; they involved powers or discretion.

• Employment Appeal Tribunal: allowed the claimant’s appeal, rejected the statutory-authority defence raised by the respondent, and remitted the section 15 justification issues to the same Employment Tribunal.
• Employment Tribunal: unanimously found unfavourable treatment arising from disability, but by a majority held that the respondent had established justification and dismissed the complaint.