Suzanne Keenan, associate director and head of employment at MKB Law, writes on her client’s successful employment discrimination claim against the PSNI.

Ms Leah McElveen, a constable with the PSNI since 2004, was represented by MKB Law at a recent Industrial Tribunals hearing. The Tribunal unanimously found that her employer had failed on a number of occasions to determine that she was a disabled person, and were in breach of duty to make reasonable adjustments for her.

Background

The Claimant began her career in the PSNI in June 2004, initially working as a Domestic Abuse Officer before transferring to the Child Exploitation Team (Public Protection Branch/C7).

In June 2016, the Claimant commenced sick leave due to a number of medical issues including both mental and physical symptoms. She attempted a return to work however was unable to continue and took a further period of sick leave from August 2016.

At this time the Claimant was referred to Occupational Health and CBT Counselling. It was in the course of this counselling that the Claimant disclosed details of traumatic events that had occurred in her childhood.

Senior Officers from the PSNI conducted welfare visits to the Claimant’s home in November 2016, during which she outlined the difficulties with her mental health.

In January 2017, Occupational Health updated the Claimant’s records to reflect “…the area the officer is working in is obstructing her recovery and is not conducive to her mental or physical health…” and a meeting was suggested. Despite this recommendation, the Claimant’s duty adjustment screen was not amended to reflect this.

Upon return to work in March 2017 the Claimant was assigned to the Child Exploitation Team and was still exposed to documents detailing sexual abuse. Occupational Health in a follow-up meeting noted that this work was proving detrimental to the Claimant’s health and wellbeing. The Claimant also raised this on a number of occasions with various professionals within the PSNI.

The Claimant was examined by a Consultant Psychiatrist who confirmed symptoms characteristic of PTSD and further noted that it was not appropriate for her to continue in her current role.

Eventually after the Claimant worked for 3 months in the Child Exploitation Team, a role in HOLMES (Home Office Large Major Enquiry System) was sourced. The Claimant accepted this role where she continues to work today.

Duty to make Reasonable Adjustments before the return to work

The case raised an interesting point regarding whether the duty to make reasonable adjustments can be triggered before the employee is fit to return to work. It was contented on behalf of the employer, that the duty to make reasonable adjustments could not arise before the claimant was fit to return to work.

The judgement stated: “…a number of cases have held that an employer was under no duty to make adjustments (such as implementing a phased return to work or a change in duties) because there was no return to work date on the horizon. However, these cases have made it clear that this will turn on the particular facts of the case and there is no absolute rule that a return date must be specified for the duty to arise…”

Conclusions & Judgement

The Tribunal concluded that all four elements of the statutory definition of disability were met from the end of January 2017. The judgement provided:

“…the tribunal concluded that the duty to make reasonable adjustments in this case potentially arose at or shortly after the end of January 2017 because at that time the respondent ought reasonably to have known that the claimant had a disability and that she was likely to be placed at a substantial disadvantage by a requirement to continue to work in PPB/C7…”

The Tribunal found that the PSNI knew that the Claimant was likely to be placed at substantial disadvantage by continuing the requirement for her to work in the Child Exploitation Team. The Tribunal concluded that the adjustment was not made reasonably promptly. The judgement further stated:

“…the tribunal has concluded that the respondent failed in its duty to make reasonable adjustments in this case. Whilst the respondent eventually arranged the required transfer of the claimant out of PPB/C7, the tribunal considers that the timing of this transfer was in breach of the duty to make reasonable adjustments reasonably promptly. In this case, in the tribunal’s opinion, this transfer could and should have been arranged in time for the claimant’s return to work…”

Outcome

The Tribunal awarded the Claimant £11,000 in compensation for injury to feelings, noting that the Claimant had been let down by the disjointed and rigid nature of some of the employer’s systems and procedures.