- When ought an officer be treated as being disabled for the purposes of making adjustments under the Equality Act 2010?
- The relevance of restricted duties, substantive adverse affect, whether the condition is long term and the impact of adjustments and treatments.
Disability discrimination can be a minefield for police forces, in part because one of the main difficulties they face is identifying when an individual is likely to be considered to be disabled, triggering the duty to make reasonable adjustments.
Particularly difficult cases can arise when the individual’s condition progressively gets worse or is yet to be diagnosed. Often an individual’s physical or mental health can deteriorate gradually, meaning that there may not be a sharp dividing line indicating the onset of a particular condition or when they became disabled under the Equality Act 2010 (“the Act”).
The purpose of this article is to explore the meaning of what it is to be “disabled” under the Act, through the prism of the restricted officer regime. The restricted officer regime is well known and relatively well understood. Conversely, officers and managers are less comfortable with the definition of “disability” under the Act. By comparing the concepts of “restricted” and “disabled” officers, the article aims to demystify the concept of “disability” for those who have to grapple with the definition in practice.
Part 1 of the Winsor Report defines “restricted duties” as, “duties assigned to a police officer of a nature which place on him physical demands which are lower than those required for the full duties of a police officer”.
An individual will be considered as disabled under the Equality Act 2010 if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Before unpacking the second definition, it is worth pointing out that both the commentators and the reported judgments are at one in encouraging us to put to one side notions of “common sense” when assessing whether an individual is disabled. That is because only a “relatively small proportion of the disabled community are what one might describe as visibly disabled” (see Vicary v British Telecommunications plc  IRLR 680).
An individual will be considered as disabled under the Equality Act 2010 if they have a, which physical or mental impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Common sense is not a reliable guide to determining who is, or is not, disabled because employment tribunals are required to focus on what an individual cannot do, rather than what they can do. Tribunals then go on to ask whether that amounts to a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
The counter intuitive nature of this exercise was highlighted recently when I met an individual who explained to me that, although she could happily run marathons, she had a bad back. She needed a desk whose height could be changed, so that she could stand while working. Such an officer is likely to be considered to be disabled under the Act, despite being able to run 26 miles.
A facet of focusing on what an individual cannot do is that there is no need for a formal diagnosis of the underlying physical or mental impairment. Rather than trying to understand what ailment the officer is suffering from, the emphasis must be on what their impairment prevents or inhibits them from doing. Similarly, it does not mean that an officer will be considered to be disabled by an employment tribunal merely because they have a diagnosis.
This point was demonstrated in the recent case of Saad v University Hospital Southampton NHS Trust. Mr Saad, a Specialist Registrar in cardiothoracic surgery, had been diagnosed with a depressive and general anxiety disorder and argued that he was disabled. A depressive and anxiety disorder is the sort of mental impairment that might often result in a finding of a disability under the Act. However, in this case here the tribunal quite properly focused on what it was that Mr Saad said he could do. It found that this did not amount to a substantial adverse effect on his ability to carry out normal day to day activities.
In examining what it is that an individual cannot do, the focus is on normal, day to day activities. If an officer who enjoyed weightlifting in her spare time and, despite being physically active, could no longer continue with her weightlifting, that would probably not be considered to be a normal day to day activity. If, however, an officer was prevented from carrying out a particular part of her job as a consequence of a physical or mental impairment, that part of her job is likely to be considered to be a normal day to day activity. Something may be a normal day to day activity for police officers, even if it is not for the rest of the population.
Substantive adverse effect
The effect of the impairment on the officer’s ability to carry out day to day activities must be “substantial”. However, the meaning of the word “substantial” under the Equality Act is anything but common sense. Section 212(2) of the Act defines it as “more than minor or trivial”, which is not an interpretation that would spring to mind if one were asked what the word “substantial” meant. The case of Paterson v Metropolitan Police Commissioner described this threshold more subtly. It was indicated that one ought to look at “how the individual carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.”
Turning to the comparative exercise, an officer will only be restricted if they have difficulty carrying out a particular aspect of their role. In such circumstances, they are likely to be assigned duties “which place on him physical demands which are lower than those required for the full duties of a police officer”. So it is quite possible that both restricted and disabled officers will have difficulties in carrying out some aspects of their usual work. Does this mean that all restricted officers are disabled?
“No”, is the short answer. One of the key aspects of the definition of disability is that the substantial effects must be long-term. This means that it has lasted, or is likely to last, at least 12 months. A paradigm example of a restricted officer who is not disabled would be one with a broken arm. They may be restricted for three months or more, but the adverse effect is unlikely to last at least 12 months and so they will not be considered to be disabled. Therefore, whilst many restricted officers are likely to be disabled, by no means all of them will be. If an officer is restricted, then they are likely to be considered to be disabled if their restriction has lasted or is likely to last more than 12 months.
That is a relatively useful rule of thumb for deciding if a restricted officer is disabled, but the converse is not true. Merely because an officer is not restricted does not mean that they are not disabled: some officers who are not restricted will nevertheless be disabled.
The impact of adjustments and treatments
The most prominent category of such officers is those who have had reasonable adjustments made to their working arrangements and can, with those adjustments, carry out the full duties of a constable. An example might be an officer who is allowed to avoid coming in to work during the rush hour in London because of their agoraphobia.
The second group of non-restricted disabled officers are those who are successfully treating the effects of their disability. The Act requires a tribunal to discount any current attempts to mitigate the effects of the impairment, and to consider what the officer would be like if they were not successfully treating their condition. In practice, this is something that causes significant difficulties for police forces. Treatment can mask the impairment, giving the impression that it does not have a substantial adverse effect on the individual’s ability to carry out day to day activities.
An officer who is able to carry out their normal day to day activities would probably not be restricted, but they could still be disabled. The question is whether they could perform their normal day to day activities if they were not treating the impairment. However, if the condition has been successfully treated (and treatment has ceased), causing a permanent or long-term improvement in the condition of the individual, then the officer may be considered to be no longer disabled.
The final group of non-restricted disabled officers are those whose impairments fluctuate, so that at times their impairment substantially and adversely effects their ability to carry out normal day to day activities but at other times it does not. If an officer suffered from epilepsy, they may well be considered to be disabled (if the substantial adverse effect is likely to recur) but might not be restricted.
It is important that managers within the police service understand how the law deals with the question of disability, and feel confident to approach these issues in the workplace. Managers should not hesitate to consult human resources, occupational health or legal service as soon as they encounter a situation where they are uncertain whether a person’s disability may be a factor.
The key points to bear in mind are:
- Focus on the key elements:
- impairment (physical and/or mental);
- substantial adverse effect;
- on day to day activity (including police duties);
- lasting or likely to last 12 months or more;
- Identify what the officer cannot do as well as their colleagues, not what they can do
- Do not be fixated on the diagnosis
- Consider whether adjustments already made, or treatment already received, is assisting the officer to carry out day to day activities
This article was first published in Police Professional.