Disability: police officer not discriminated against over threatening behaviour

Aitken v Commissioner of Police of the Metropolis [2011] EWCA Civ 582 CA

disability discrimination | mental illness | violent tendencies

The Court of Appeal has given short shrift to a police officer's disability discrimination claim over his police force's actions after he displayed violent tendencies at a Christmas party that led his colleagues to fear for their safety. 

Implications for employers

  • PC Aitken’s failure to win at any level of appeal should reassure employers that use capability procedures to manage an employee with mental-health problems who displays erratic behaviour. However, if there is clearly a mental-health issue, the issue should not be treated as a disciplinary matter. 
  • The Equality Act 2010, which replaced the Disability Discrimination Act 1995 from 1 October 2010, catches "perceptive discrimination", where an individual is directly discriminated against or harassed based on a perception that he or she has the protected characteristic of disability, even if that belief is mistaken. 

PC Aitken worked as a police officer in the London Borough of Southwark. In 2005, he had a period of leave for depression and made a phased return to work. He received counselling and was diagnosed with obsessive compulsive disorder, which meant that, among other symptoms, he had a tendency to binge drink. In December 2005, PC Aitken attended a workplace Christmas party. After drinking heavily, his behaviour became aggressive and he made suggestive remarks to female colleagues; threatened to punch a female officer; and squeezed the hand of one colleague and the arm of another. 

PC Aitken's behaviour was reported by worried colleagues and he was offered help. He was put on special leave and, after seeing various doctors, was assessed as fit for restricted duties involving no contact with the public. On his return to work, he met with his manager but became agitated and was sent home. PC Aitken was later given formal "words of advice" about what had happened at the Christmas party, but the issue was not treated as a disciplinary one. It was decided that he should be moved to a department that dealt with CCTV-based investigations but that he would not have any contact with the public. The role would normally have involved such contact. Following a further period of sick leave, the police force decided that PC Aitken should be retired on the ground of ill health, but his appeal against this decision was upheld on the basis that the appeal panel felt that he could recover sufficiently to be able to carry out the normal duties of a police officer. 

PC Aitken brought various disability discrimination claims related to his treatment by the police force. The employment tribunal dismissed all of PC Aitken's claims, a decision that was later upheld by the Employment Appeal Tribunal (EAT). The employment tribunal found that the employer acted because of how PC Aitken appeared to others, and did not act on the basis of assumptions about mental illness. The employer's actions did not constitute disability discrimination. 

The Court of Appeal allowed permission for PC Aitken to appeal the EAT decision because it believed that there were arguable points of law to be settled on:

  • whether or not less favourable treatment on the ground of a "necessary facet of a disability" amounts to direct disability discrimination;
  • whether or not liability for direct discrimination can arise from a "perceived disability", for example when there is a mistaken belief that the claimant has a disability, or a misperception of an actual disability;
  • when constructing a hypothetical comparator in direct discrimination cases, whether or not the characteristics of the comparator should exclude not just the disability itself, but also the conduct of the disabled employee, if that conduct is a "necessary facet" of the employee's disability;
  • whether or not, on the claim for failure to make reasonable adjustments, account was properly taken of "necessary facets" of the claimant's disability; and
  • whether or not there was a misunderstanding of the claimant's disability and a subjective view taken of it and its effects. 

The Court of Appeal regretted giving permission to appeal in a case that became narrower in scope than it had envisaged. It was particularly unimpressed that the claimant had failed to inform it that he had retired under the ill-health retirement scheme for police officers. The Court of Appeal was aware that PC Aitken's retirement should not deprive him of his right to relief for past discrimination or have affected the outcome of the appeal, but it should have been told to ensure that the appeal has not become academic or hypothetical, to the benefit of neither party. 

Pointing out that it could set aside the employment tribunal decision only if an error of error of law had been made, the Court of Appeal found that:

  • PC Aitken could not argue that his treatment was "on the ground of" his disability because his conduct was "a necessary facet" of his disability and was so much part and parcel of the disability that it could not be separated from it, as the issue had not been raised in the employment tribunal;
  • this case is distinguishable from Aylott v Stockton-on-Tees Borough Council [2010] IRLR 994 CA, where the tribunal found that the behaviour of the claimant, who suffered from bipolar affective disorder, had never in fact been threatening to his colleagues, and that his treatment by the respondent council was the result of stereotypical views of mental illness;
  • the tribunal's findings of fact in this case were that PC Aitken used aggressive words, behaviour and threats that were frightening to a reasonable person, and it rightly excluded the claimant's disability from the characteristics of the hypothetical comparator, but still included his conduct that concerned his colleagues; and
  • this is not a case where there had been an incorrect perception of disability or a mistake as to the existence of an impairment constituting disability, and so it was unnecessary for the tribunal to consider whether or not this comes under the Disability Discrimination Act 1995 (now replaced by the Equality Act 2010). 

The Court of Appeal concluded that users of the tribunal system in discrimination cases and their professional advisers need to be reminded that they:

  • must have evidence to prove facts;
  • need facts on which to base legal submissions; and
  • need real, not imaginary, questions of law for an appeal to the EAT and Court of Appeal. 

Additional resources

Case transcript of Aitken v Commissioner of Police of the Metropolis (on the BAILII website)

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