THE INDUSTRIAL TRIBUNALS

 								CASE REF:	1151/06

CLAIMANT:			Francis Lawlor

RESPONDENTS:		1.  Police Service of Northern Ireland
				2.  Chief Inspector Kernohan

DECISION
The unanimous decision of the tribunal is that the claimant’s claims of disability discrimination and race discrimination are dismissed.  

Constitution of Tribunal:
Chairman:		Mrs Ó Murray
Members:		Mr R Gray
			Mr P Killen

Appearances:
The claimant appeared and was unrepresented.
The respondents were represented by Mr P Coll, barrister-at-law, instructed by the Crown Solicitor’s Office.  

The Claim

1.	The claimant’s claims were for race discrimination under the Race Relations (NI) Order (referred to below as “the RRO”); disability-related discrimination in that the claimant claimed that the Police Service of Northern Ireland (PSNI) terminated his training contract for a reason related to his disability; and disability discrimination in that the respondents failed to make reasonable adjustments for him.  The claimant was held to be disabled within the meaning of the Disability Discrimination Act 1995 (referred to below as “the DDA”) following a Pre-hearing Review which took place on 1 November 2007.

The Issues

2.	The issues for the tribunal to determine therefore were as follows:- 

(a)	did the claimant’s termination on 9 June 2006 constitute less favourable treatment for a reason related to the claimant’s disability and, if so, was it justified;

(b)	was there a failure by the respondents to make reasonable adjustments, firstly in relation to the training period, and secondly, was there a failure to consider reasonable adjustments to enable the claimant to attest  as a probationary constable and progress to working as a police officer in an operational setting;

(c)	was the claimant harassed on the grounds of his race in an incident when Inspector McConnell made a comment about his accent;

(d)	was the claimant discriminated against on the grounds of his race in relation to the termination of his training contract; 

(e)	did the exceptions in DDA and RRO for acts done under statutory authority, apply in this case.

Sources of Evidence

3.	The tribunal heard evidence by way of witness statement and oral evidence from the claimant.  For the respondents the tribunal heard evidence by witness statements and orally from Inspector Porter, Programme Director of the Yellow training course at Police College, Garnerville; Inspector McConnell, Programme Director of the Green course; Detective Constable McRoberts, the claimant’s Studies Advisor on the Green course; Mrs Hendley, Occupational Psychologist employed by the PSNI; Detective Chief Superintendent Haylett, Deputy Director of Human Resources responsible for hearing the claimant’s appeal against dismissal; Dr McQuoid, Consultant Chartered Educational Psychologist and Chief Inspector Kernohan, Head of Foundation Programmes at Garnerville.  The tribunal also had the written statements of Ms Faulkner, Assistant Chief officer for Human Resources and Dr Crowther both of whom were present at the DDA conference where the claimant’s situation was discussed.  It was agreed between the parties that oral evidence was not required from Ms Faulkner and Dr Crowther.  

4.	The tribunal also had four agreed bundles of documentation.  Further documents were produced during the hearing at the claimant’s request.

Findings of Fact

5.	The tribunal found the following facts relevant to the issues before it.

(1)	The claimant was born and raised in the Republic of Ireland but at the time relevant to these proceedings resided in County Fermanagh.  

(2)		He had long held an ambition to be a police officer, whether in the PSNI or the Garda Siochana.  In pursuit of this ambition he had made three unsuccessful applications to join the Garda and had applied seven times to the PSNI, finally gaining a place on the training course at Garnerville after attending a course in England to help him pass the entrance exams.  Since leaving the PSNI as a trainee, the claimant has gained a place as a trainee Garda Reserve Officer.  At the time of the hearing the claimant had not passed out as a fully-fledged Garda Reserve Officer.  It was agreed between the parties that a Garda Reserve Officer was not on a par with a PSNI officer as it was a lesser post which had no equivalent in the PSNI. 

(3)	At the outset the claimant essentially appeared to be saying that if he was good enough to be attested as a Garda Reserve Officer he should have been good enough for the PSNI.  However the claimant accepted that Garda Reserve Officers were a different and lesser form of police officer than a PSNI officer.  The tribunal made it clear to the claimant that it was not for this tribunal to conduct an exercise comparing the standards between the Garda Siochana and the PSNI. 
 
(4)	However the tribunal wishes to give some detail of the evidence given by the claimant because his evidence on this point was far from satisfactory and detracted substantially from his credibility.  Prior to the hearing, the claimant said that he needed one day out of the hearing because he was going to attest as a Garda Reserve Officer.  It was therefore arranged by agreement that the tribunal would not sit on Thursday 14 May 2009.  However, on the first day of hearing, the claimant said that he was not going to attend the passing out ceremony because a complaint had been made some time before about him in relation to a road traffic accident and it had gone to the Garda Ombudsman.  He stated that, whilst he had been exonerated in full the timings were such that he would miss the passing out ceremony.
 
(5)	 During the hearing, various points were put to the claimant by counsel for the respondents as it appeared that some further information had been elicited by the respondents in relation to this matter.  After some prevarication, the claimant eventually conceded that the matter was still with the Garda authorities and it was clear to the tribunal that it was not the case that he had yet been exonerated.  It was also conceded by the claimant that part of the incident in question was that the claimant had represented himself to be a Garda officer and that he could arrest the other person involved in the road traffic accident.  The tribunal was far from satisfied with the claimant’s evidence in relation to this matter.  It was he who brought into the case before us, the issue of his suitability to be a Garda and the tribunal feels that he was trying to mislead us in relation to the position to bolster his case.  The tribunal had serious concerns about the claimant’s lack of credibility and/or unreliability on this and on other issues (see below).  This meant that when there was a conflict in evidence between the claimant and the PSNI witnesses, the tribunal favoured the PSNI witnesses, as at best the claimant was an unreliable witness and at worst, he selectively gave information when he felt it could bolster his case.  

(6)		In the rest of the UK there is a “Community Reserve Officer” which seems to be akin to a Garda Reserve Officer, that is a lesser form of police officer than a regular police officer.  There is no equivalent of this in Northern Ireland.  There is a post of Community Police Officer in Northern Ireland.

(7)		Applicants for Community Police Officer posts are operational officers who apply after several years experience as it is regarded as a specialist post.  Community Police Officers are required to be able to operate operationally and are often first on the scene in cases of community disturbance and violence and therefore have to deal with very fraught, stressful situations.

(8)		The claimant started as a trainee PSNI officer at Garnerville on 11 December 2005.  

(9)		It was clear from the PSNI witnesses that the claimant was regarded as a very hard-working trainee and was very personable and likeable and was popular on a personal basis during his time in training for the PSNI. 

(10)	The Garnerville course was a twenty-one week course during which an individual was designated as a trainee officer.  At the end of that course the officer would attest as a probationary constable.  At the point of attestation a probationary constable had all the powers and duties of a police officer.  For example, he could bear a firearm and had the same powers of arrest as a fully-fledged officer.

(11)	Following attestation, the probationary period was normally scheduled to last two years.  During that period the probationer would be stationed at a PSNI station and could be out on his own on duty depending on where he was stationed.  The ratio of supervision of probationers was one supervisor to three probationers outside Belfast and one supervisor to five probationers in Belfast.  During the two-year probationary period a probationer would return at various times for further training to Garnerville.

(12)	There were concerns in PSNI at an organisational level about the quality of probationer constables and the difficulties they encountered during their probationary period.  For example, the Omagh District Commander Superintendent Skuce indicated at a meeting on 25 April 2006 with Inspector Porter that the vast majority of probationers in his district, had to have their performance monitored or their probation extended.  

(13)	The claimant started on 11 December 2005 on the Yellow training course.  Different groups of trainees started at different times so that at any one time in Garnerville there were several groups of trainees at different stages in their training.

(14)	Concern was raised by the trainers regarding the standard of the claimant’s paperwork and his performance in scenario-based practical exercises.  The claimant had obtained a high number of unacceptable grades in such paperwork and exercises.

(15)	On 3 February 2006, Sergeant Greenlee, one of the trainers, initiated the Performance Below Standard scheme (referred to below as “the PBS scheme”).  Sergeant Greenlee made a recommendation to the Course Director, Inspector Porter, that the claimant be put on level 1 PBS.  

(16)	An outline of the way the PBS scheme normally operated is as follows.  A trainee is put on PBS if his performance in below standard.  The first level is PBS 1 and the trainee is given ten working days to demonstrate improvement.  The situation is then reviewed and, if the requisite level of improvement has been demonstrated, the person reverts to normal monitoring.  If there is only slight improvement, the trainee is given another ten days to demonstrate significant improvement, that is, they are put on PBS level 2.  If significant improvement is demonstrated, they go back to normal monitoring.  If the improvement is only slight, they are given further time and if no significant improvement is made, a recommendation for dismissal is made by the Course Director to the Head of Foundation Programmes.  The decision to dismiss is then taken by the Head of Foundation Programmes who at the relevant time for these proceedings was Chief Inspector Kernohan.  When an individual is on the PBS scheme they are subjected to extra monitoring to assess whether they have made the necessary improvements.

(17)	On 6 February 2006, Inspector Porter, the Programme Director responsible for the Yellow course, spoke with Sergeant Greenlee regarding her concerns about the claimant.  Sergeant Greenlee recommended that a referral be made to the Educational Psychologist in view of the high number of unacceptable grades in the claimant’s work.  Inspector Porter reviewed the claimant’s work and assessment in his Personal Development Portfolio (referred to below as “the PDP file”).  The PDP file held all paperwork relating to work done by an individual during the entire training course.  Inspector Porter decided to place the claimant on PBS level 1 and she made a referral to Dr McQuoid, the Educational Psychologist for assessment.

(18)	On 23 February 2006, a second tutorial was arranged but did not take place because the claimant was allowed a further ten days to continue to gather evidence for the review tutorial which was then arranged for 10 March 2006.  This extra time was not normally allowed under PBS.

(19)	On 10 March 2006, the second tutorial in the PBS scheme took place.  The claimant was maintained at PBS level 1 because, although he had improved, he had not yet reached a satisfactory standard in his written work.  He was maintained on level 1 PBS for another ten days for his written work only.  This was to be reviewed on 24 March 2006.  This was additional time to the normal timescale allowed for the PBS procedure.  

(20)	On 29 March 2006, a third tutorial was held on the PBS scheme because the claimant’s written communication had not yet reached the necessary standard.  During the meeting the claimant became very distressed, was crying and appeared to have difficulties taking in what was being said to him.  He was referred to Occupational Health and Welfare for support and was offered the option of re-coursing.  Re-coursing meant that he would join the Green course which had started some weeks behind the Yellow course.  This would enable him to have more time to improve his performance.  The claimant refused the offer of re-coursing at this stage.

(21)	On 31 March 2006, the claimant was involved in a scenario-based exercise regarding sudden death.  During the exercise the claimant asked if it would be appropriate to give a mortuary attendant money as a kind of tip to ensure that he did a good job.  Despite his classmates’ strong reaction to this and the trainer’s adverse reaction, the claimant attempted to justify his suggestion.  He continued to justify his suggestion despite being told that a police officer should never be concerned in any monetary transactions because of the danger that his integrity could be impugned or that bribery allegations could be made.  The claimant persisted in maintaining that he could see nothing wrong with this suggestion and indeed at hearing it was clear that he still believed that this could be a reasonable thing to do in practice.    This raised a concern on the part of the PSNI.  As the trainer stated in her report to her superior “I was more concerned because he would not let the matter drop and did not appear to (want to) see the organisational consequences of this”.  The tribunal simply does not know whether the claimant’s behaviour in this incident was related to his disability, but it was one of the behavioural issues that was taken into account by the PSNI in deciding to terminate him.  

(22)	On 13 April 2006, the first case conference under the PBS procedure was held with Inspector Porter and was attended by the claimant and Sergeant Greenlee.  Inspector Porter made the decision to re-course the claimant to the Green course to allow him extra time to complete his paperwork.  Another ten days was given for further assessment, that is, until 28 April 2006.    Re-coursing meant that the claimant would go back, join the Green team and would essentially be given extra time to complete his paperwork and exercises and would be subject to continuous assessment and monitoring.  There was a dispute as to whether this meant in effect that the claimant received an extra ten weeks’ or five weeks’ training.  It appears to the tribunal that the claimant effectively received five extra weeks’ training and the essential point is that he received extra time to complete his paperwork and to be continually assessed and monitored. 
 
(23)	On 18 April 2006, the claimant started with the Green course group and on 19 April 2006, Sergeant McRoberts was made the claimant’s Study Advisor.  All the work done on the Green and Yellow courses for PDP purposes was in the PDP folder. The respondents took account of everything in the PDP folder when assessing the claimant before terminating his service.   In the tribunal’s view it was perfectly in order for the respondent to take account of everything in the PDP folder when assessing the claimant. 
 
(24)	Concerns were raised at various points about the claimant’s behaviour.  On balance the tribunal believes that the claimant had some behavioural issues, for example, picking his nose and eating it, putting his finger up his nose whilst talking to people and behaving in a “bizarre” way in the domestic violence practical.  It is clear that the claimant was not aware that he was displaying these behaviours and he maintained an absolute denial of them during the hearing.  However, we have no evidence that these behavioural issues were related to the claimant’s disability.  They were, however, taken into account by the respondents in reaching their decision to terminate the claimant. 

(25)	On 5 May 2006, Inspector McConnell met the claimant as part of the PBS procedure as he was the Director of the Green course, that is the equivalent of Inspector Porter on the Yellow course.  This was a case conference under PBS level 2 in order to review the claimant’s progress and was the final stage of PBS.  Inspector McConnell went through Sergeant McRoberts report on the claimant’s performance on the Green course with the claimant.

(26)	Inspector McConnell had two options open to him in the PBS procedure.  These were outlined on the PBS form as follows: 

“ (i)	All doubts have been removed about the student.  The student 
		will revert to normal assessment . 

(ii) 	No significant improvement.  A recommendation will now be 
		made to the Director of Training for dispensing with service.”  

(27)	The claimant agreed that he became agitated and spoke quickly during this meeting on the 5 May 2006. The claimant knew that he was going into the meeting with a possibility that his termination would be recommended and the tribunal’s view is that this is why he became so agitated and spoke so quickly.

(28)	Inspector McConnell’s evidence was that it was at this meeting that he made reference to the claimant’s accent.  The thrust of Inspector McConnell’s evidence was that he asked the claimant to slow down so that he could understand what he was saying and asked the claimant to listen to what he was saying, how he was speaking and asked if he was aware of his accent.  This comment was made in the context of the importance of making himself clearly understood and that if he spoke quickly not everyone would understand his accent.  

(29)	The claimant denied that the accent comment was made at this meeting and at hearing alleged that there was a second meeting with Inspector McConnell when the accent comment was raised.  There was absolutely no evidence of a second meeting despite the claimant’s vehement assertion at hearing (an assertion not raised in his two witness statements) that such a meeting took place either before 5 May, after 5 May, or indeed during the Peace exercise in April.  Indeed the tribunal spent some time allowing the claimant access to notebooks as he was adamant that the notebooks would support his contention, to check the date of this meeting.  Even when the notebooks did not support the claimant’s assertion, he still maintained that a second meeting had taken place.  The claimant’s vacillation on this point, points at best to his unreliability as a witness and at worst, detracts from his credibility.  In view of this the tribunal preferred Inspector McConnell’s evidence on the issue of the accent comment and finds that the comment on his accent was in the context of the claimant speaking quickly and agitatedly and thus being hard to understand.  The tribunal also accepts Inspector McConnell’s evidence that he would have made this comment to anyone irrespective of their type of accent in similar circumstances.

(30)	Later that same day, 5 May 2006,  the claimant was very upset because he knew termination was being recommended and there was a concern that he might harm himself.  This was such a concern on the part of one of the claimant’s colleagues that the colleague went to Inspector Porter and she contacted Occupational Health and Welfare to ask them to give the claimant support.  Despite such extreme upset witnessed by his colleagues, the claimant was very calm a very short period later and appeared to have no insight into the distress and concern that he had caused to his colleagues, supervisors and Inspector Porter.  This was one of the behavioural issues which appeared to form part of the decision to terminate.  It is not clear to the tribunal that this was related to the claimant’s disability whilst it did form part of the decision to terminate.  

(31)	On that same day, 5 May 2006, Chief Inspector Kernohan met the claimant and put him on special leave for one week.

(32)	On 9 May 2006, Inspector McConnell met the PSNI Psychologist, Mrs Hazel Hendley to examine the claimant’s work, to discuss possible reasonable adjustments under the DDA and to discuss how the claimant would cope in the operational environment.  Dr McQuoid had seen the claimant on 27 February 2006 and her report of 3 March 2006 had been forwarded to Mrs Hendley for her to assess and put any relevant and feasible recommendations into practice following discussion with the claimant.  Dr McQuoid’s report  was not sent to the PSNI managers in line with PSNI practice.  

(33)	On 10 May 2006, Inspector McConnell did a report to Chief Inspector Kernohan following the review meeting that he had had with the claimant on 5 May.  Inspector McConnell’s report reviewed the claimant’s performance to date and outlined the problems he had and the things that had been done for him and raised the question as to how far adjustments would have to be made for the claimant’s level of disability both in training and operationally ie following attestation as a probationary constable and beyond. Inspector McConnell recommended that a further assessment by a Clinical Psychologist and a case conference take place.  In the event there was no further assessment by a clinical psychologist although the DDA case conference took place on the 7 June 2006 (see below).

(34)	In the report of 10 May 2006, Inspector McConnell made his case strongly because he had grave concerns about the claimant’s fitness to attest and he made reference to wider organisational implications if the claimant were allowed to attest.  This reference to wider issues was characterised by the claimant as evidence of a pre-determination to get rid of him.  On the contrary, the tribunal finds it to have been eminently reasonable of Inspector McConnell, and Chief Inspector Kernohan in turn, to have an eye to wider organisational issues, especially as their decision in this case could have implications for minimum standards.  These were legitimate concerns and it was reasonable for those concerns to form the backdrop to the consideration of possible adjustments for the claimant.

(35)	Throughout the training course in Garnerville, the claimant was helped substantially by trainers and his colleagues and the claimant also had to work late into the night practising and re-doing paperwork to ensure that he could perform to standard.  The claimant denied that he received any help to that extent.  The tribunal accepts the PSNI evidence on the extent of practice and help the claimant received.  The claimant did get better because of this extensive assistance and because of his own practice which was excessive.

(36)	On 12 May 2006, a welfare meeting was held with Chief Inspector Kernohan.  The claimant went into the meeting worrying that he would be dismissed and the first thing that Chief Inspector Kernohan said to him was that he was not being sacked that day.  Chief Inspector Kernohan’s evidence (which we accept) was that the claimant did not take anything else in once he was told that he was not being sacked that day.  Chief Inspector Kernohan essentially told the claimant at that meeting that he could go back with the Greens and he would see how the claimant did over the next few weeks.  He made it clear that the claimant’s work was not up to standard and made it clear that he was taking more advice from others including the occupational psychologist, Mrs Hendley.  Chief Inspector Kernohan made it clear that it depended on the reports he received whether he would reconsider his decision that the claimant was not meeting the standards required. 

(37)	The claimant’s case throughout was that Chief Inspector Kernohan had said to him that if he got his exams and passed the Green course he would attest as a probationary officer.  In his evidence at tribunal however, the claimant said that Chief Inspector Kernohan had told him he would be “getting a second opinion” too.  In other words there was a caveat to what Chief Inspector Kernohan told him, namely, that it was not as simple as the claimant passing the exams on the Green course but that Chief Inspector Kernohan was getting another opinion on the claimant’s suitability.  The tribunal therefore does not accept the claimant’s case that if he passed his exams and the Green course he would inevitably attest nor does the tribunal accept that this was represented to him.  It was clear that he was still being monitored and that there were serious concerns about his suitability to attest. 

(38)	A briefing exercise took place on 6 June 2006.  This was an exercise carried out by Chief Inspector Kernohan in “exam conditions” and the aim was to simulate a real-life operational situation where police officers would be briefed verbally about an incident.  It therefore differed from other briefing training exercises.  The exercise involved Chief Inspector Kernohan calling out details of an alleged incident and a description of a suspect and the trainees had to take down an accurate note in order to brief their colleagues.  The claimant failed the exercise badly because he failed to take down enough detail and got key details wrong.  

(39)	On 7 June 2006, there was a DDA case conference.  The purpose of the conference was to see what adjustments could be put in place for the claimant particularly following attestation.  The decision was reached that it was not possible to put any adjustments in place but it was agreed to let the claimant sit his exams as, if the claimant passed his exams he would emerge with a Certificate in Police Studies which gave him sixty “credits” which could be used for other courses.  The DDA case conference decided that serious consideration should be given to dismissal.  Chief Inspector Kernohan was to go off to make the decision on the claimant’s future and to do a report.  

(40)	On 8 June 2006, as part of the personal safety examination (“the PSP”) there was a baton exercise.  This was a role-playing scenario where the trainee was assessed on using the baton to subdue an assailant who was played by a volunteer.  The claimant failed the exercise.

(41)	On 9 June 2006, Sergeant Boddy spoke to the students for twenty minutes and the tribunal accepts the respondents’ evidence that the claimant was told why he had failed the baton exercise.  There were four elements to his failure namely poor communication skills, the inability to protect himself, the inability to deal with confrontation and ineffective use of the baton.  The claimant failed to see where he had gone wrong in the baton exercise.           
        
(42)	On 9 June 2006, the claimant met Chief Inspector Kernohan.  This was the culmination of the PBS process and the DDA assessment and it was at this meeting that the claimant was told that his services were being terminated.
	
(43)	At the termination meeting on 9 June 2006, Chief Inspector Kernohan mentioned (amongst other things) the failure in the baton exercise the previous day.  The claimant asked to be allowed to resit that exercise the next week. The claimant alleged that he had had an ear infection during this briefing exercise and that this had led to his poor performance.  He had not raised this at the time of the exercise but raised it for the first time at the termination meeting.  In addition, the claimant gave two conflicting accounts of the reason for him being unable to do the exercise.  Firstly he said that he could not take in all the details being called out by Chief Inspector Kernohan because of his ear infection and the pain involved but he also agreed that he said afterwards to Chief Inspector Kernohan that he would fill the details in later implying that he had taken in the details but simply had not enough time to fill them in.  In his statements and at hearing the claimant maintained that he had given his medical appointment card to Chief Inspector Kernohan at this meeting to prove that he had had a problem with his ear.  After much toing and froing at the hearing and issues raised about discrepancies on the face of the card, the claimant admitted that he did not produce the card at the meeting with Chief Inspector Kernohan.  The claimant’s evidence on this point detracts from his credibility.  The claimant gave so many conflicting accounts on this point and aggressively maintained his stance until he could maintain it no longer in the face of the discrepancies being put to him, that the tribunal believes that the claimant was being less than candid about the production of the medical card.  
 
(44)	The claimant made much in his case of the fact that he was not allowed to re-sit that element of the PSP course given that he said it was an element in the decision to terminate his services.  The respondents’ case was that there was no point in allowing him to re-sit because the claimant did not accept that he had done anything wrong and additionally it was a health and safety issue for the claimant and the volunteer if the claimant redid the scenarios not having accepted that he had done anything wrong the first time round.  The claimant’s case was that he should have been allowed to re-sit and that in the Student Handbook it was made clear that everyone would get a re-sit.  The respondents’ case was that this was a discretion which the respondent could decide not to exercise in the claimant’s favour.  

(45)	The claimant thought that the adverse outcome of the PSP exercise (of which the baton exercise formed part) was all that there was behind the decision not to allow him to attest but this was not the case.  The decision had already been made to terminate the claimant’s service because no further adjustments could be made.  This recommendation to terminate was to all intents and purposes made at the DDA case conference on 7 June and the decision to terminate was communicated to the claimant on 9 June as the respondents did not want to communicate the decision to him before the exams so that he would be able to sit his exams and have a good chance of passing them.

(46)	As is recorded in Chief Inspector Kernohan’s account of the termination meeting of Friday 9 June, “We knew that your dismissal would have to be progressed on Wednesday after the DDA conference.  We didn’t tell you at the time to give you the opportunity to complete your exams without causing you upset in the hope that you would pass the academic side.  You have passed this part so you will take away a Certificate in Police Studies which is a great achievement.  This gives you 60 cat points which gives you exemptions if you go to do further education.  This means you have got something to take away at the end of these 21 weeks.”   

(47)	In addition in the same document it is recorded that Chief Inspector Kernohan said “You know it is not due to you failing your PSP, it is as a result of the case conference.”  

(48)	The tribunal therefore finds that it was in order for the respondent not to allow the re-sit as it would not have changed the decision which had effectively already been made, namely, that the claimant was not fit to attest due to concerns over his ability to deal with paperwork and to process information, the inability to make adjustments to deal with his problems and because of concern over behavioural issues.

(49)	The document terminating the claimant (the SAP5) states that he was being terminated under regulation 6(1)(a) of the Police Trainee Regulations (NI) 2001 as he was “Not likely to become an efficient or well-conducted constable on completion of his period as a police trainee”.  In the same document under the heading “Circumstances” it states “The officer following examination has both dyspraxia and dyslexia and after reasonable adjustments being made for educational purposes and a DDA case conference, the officer is not likely to be well conducted or efficient as a police officer.”

	(50)	Chief Inspector Kernohan had had occasion to terminate 12 other officers 
		over the years under Regulation 6(1)(a) for various reasons.

(51)		On 22 June 2006 there was an appeal hearing with Chief Superintendent Haylett.  Chief Superintendent Haylett’s aim was to ensure that he was satisfied that the dismissal was justified and that reasonable adjustments had been made by the College.  The claimant alleged that this was a pre-determined decision and the tribunal does not accept this as there is simply no evidence to suggest that Chief Superintendent Haylett had made up his mind in advance and was simply going through the motions.  Chief Superintendent Haylett was a senior officer with very long service and experience.    He had specific experience on DDA panels and on assessing adjustments for individuals. He looked at all the papers and was satisfied that nothing else could be done.
 
(52)	The claimant ultimately was allowed to resign on 3 July 2006, his appeal having been rejected.  

(53)	The claimant sent a grievance letter of 9 August 2006 and the outcome of the grievance was communicated on 21 August 2006.  The tribunal finds that the statutory grievance procedure was complied with by both the respondent and the claimant.
	
(54)	It was agreed by the claimant that police training was special given the nature of the job.  However, the claimant vacillated between saying that operationally police work was special, to his saying that it was not much different from working in a call centre in terms of the requirements for accuracy and communication.  The claimant, however, agreed that paperwork was essential for police work and formed the basis of all police work.  The claimant conceded that he had had problems with his paperwork in training but did not accept that he would have any problems operationally despite the concerns of the police about his performance.  The tribunal finds that the work of a police officer has special features and cannot be validly compared to the claimant’s work in a call centre.  Those special features which are fundamental to the job are the vital importance of accuracy in absorbing and recording information at speed, under pressure, in fraught situations.  These skills are vital because they relate to the apprehending of offenders and their successful prosecution.  This is a basic function of the police, is important to the PSNI as an organisation, to victims of crime, to alleged offenders and to society as a whole.  For this reason the PSNI was entitled, in the tribunal’s judgement, to maintain minimum standards which related to the carrying out of these basic functions. 

Findings on the psychologists’ evidence

6.	The report compiled by Dr McQuoid following her assessment of the claimant on 27 February 2006 makes several recommendations for consideration by the PSNI in the form of Mrs Hendley to enable the claimant to continue with his training.  The suggestions as set out in her report were:-

	“The use of a computer to write reports, to print his handwriting for clarity, a hand-held electronic spellchecker or electronic dictionary, learning definitions by heart by constant repetition, avoiding information overload and learning in small chunks, using multi-sensory techniques to acquire new information, using right brained skills such as rhythm, colour, imagination and patterns as ways of memorising.”

7.	Dr McQuoid diagnosed the claimant with mild dyslexia/dyspraxia.  In evidence she made it clear that the majority of the claimant’s problems which manifested themselves in relation to his training at Garnerville related to his dyslexia.  From the  evidence of Dr McQuoid it was clear that the claimant’s problems, in the main, related to his dyslexia and comprised problems with spelling, writing, accuracy, processing and recording information.   These problems would become more pronounced when the claimant was under pressure or had to work at speed.   As regards the claimant in an operational setting, Dr McQuoid’s additional concern was that his tests showed a low processing speed, so in life generally he would be slower than it would be advisable to be.

8.	Dr McQuoid’s recommendations comprised of a standard set of recommendations that she would make if she diagnosed that a student had specific learning disabilities of a dyslexic/dyspraxic nature.  

9.	Mrs Hendley’s meeting with the claimant was in early March 2006 and she spent 11/2 to 2 hours going  through Dr McQuoid’s recommendations. The claimant rejected most of them but accepted the 25% extra time for exams.  Mrs Hendley  explained and demonstrated the “read-aloud” software for the computer. The claimant rejected the use of the software.  Mrs Hendley said that the claimant could do the final assessments in a room on his own with someone calling out the questions to help him comprehend them.  The claimant rejected this after considering it for a few weeks.  Mrs Hendley also went through the learning techniques that the claimant could employ as outlined by Dr McQuoid.  The tribunal finds that it was sufficient for her to have explained these techniques as it was up to the claimant to adapt them for his own use.  

10.	It was for Mrs Hendley, as in-house occupational psychologist, to go through the suggestions by Dr McQuoid and see what could be put in place for the claimant.  The tribunal found Mrs Hendley to be a particularly impressive witness and whilst the claimant emphatically denied that Mrs Hendley went through some of these points raised in Dr McQuoid’s report with him at her meeting with him, we do not accept the claimant’s evidence on this given his unreliability on other points of evidence and we prefer Mrs Hendley’s evidence as it was clear and accorded with the documentation.  

11.	Mrs Hendley had experience of putting in place adjustments for officers with dyslexia in the past and was mindful of the fact that every person with dyslexia has slightly different needs and therefore went through the recommendations with the claimant with a view to seeing what was suitable for him and acceptable to him.  

The Law
 
12.		The law on disability discrimination is contained in the Disability Discrimination Act 1995 (“the DDA”), as amended.  The law on disability discrimination is outlined and commented upon in Harveys Industrial Relations and Employment Law at Division L Paragraphs 1346 – 1380.  
      
13. 	Duty to make reasonable adjustments  
	The employer’s duty to make adjustments is outlined in the DDA at Section 4A and states, insofar as is relevant to these proceedings, as follows:-

			“4A – (1)	Where –

		(a)	a provision, criterion or practice applied by or on behalf of an 
			employer, … 

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

14.	In the case of Rowan v The Environment Agency 2008 IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments has arisen and whether it has been breached.  Given that the respondent conceded that the duty to make reasonable adjustments arose, the steps outlined in Rowan which are relevant to this case, are as follows:-

(1)	identify the provision, criterion or practice applied that has put the claimant at a disadvantage compared to those who are not disabled;

(2)	identify the non-disabled comparator (where appropriate);

(3)	identify the nature and extent of the substantial disadvantage suffered by the claimant.

15.	If the duty to make adjustments arises, the tribunal then goes on to determine whether any proposed adjustment is reasonable to prevent the provision, criterion or practice placing the claimant at that substantial disadvantage.

16. 	It is clear from the case law, that there is no onus on the claimant to suggest adjustments.  It is good practice for the employer to ask the employee about any possible adjustments.  There is no separate duty to consult or carry out a risk assessment (Tarbuck [2006] IRLR 664 EAT).  However, failure to carry out an assessment or to consult, does not mean that the employer can rely on ignorance to excuse a failure to make a reasonable adjustment (Hay v Surrey County Council [2007] EWCA Civ 93 CA).

17.		Section 18B(1) of the DDA sets out the factors that the tribunal must consider when deciding whether it is reasonable for an employer to make any particular adjustment once the duty to make a reasonable adjustment has been triggered.  These include:-

	“18B (1)  In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to –

(a)	the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b)	the extent to which it is practicable for him to take the step;

(c)	the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

	(d)	the extent of his financial and other resources;

	(e)	the availability to him of financial or other assistance with 
			respect to taking the step;

	(f)	the nature of his activities and the size of his undertaking;”.

18. 		At section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments.  The Disability Code of Practice on Employment and Occupation gives guidance on what those steps might mean in practice.  

19.		The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings.  On reasonable adjustments, the claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen; and that it has been breached.  If the claimant proves such facts the burden shifts to the employer to prove either, that no such duty arises or, that it has not been breached.  As it was conceded in this case that the duty arose the tribunal’s focus was on the reasonableness of possible adjustments.

20.	Disability-related discrimination.  The law on disability-related discrimination is set out at Section 3A (1) to (4) of the DDA.  Disability-related discrimination occurs when an employer’s treatment is for a reason which relates to the employee’s disability, the treatment is less favourable than the way in which the employer treats or would treat others to whom that reason does not, or would not, apply and the employer cannot show that the treatment was justified.  

21.	Before the decision of London Borough of Lewisham –v- Malcolm 2008, the comparator was someone, either real or hypothetical, to whom the reason for the treatment did not apply, that is, it was someone without the relevant disability who was not subjected to the disability-related treatment.  Whether or not the employer had knowledge of the disability was irrelevant to the question of whether this type of discrimination had occurred.  (Clarke v Novacold 1999 CA).  

22.	However, the House of Lords in Malcolm held, by a majority, that Clarke v Novacold was wrongly decided.  It decided that the comparator should be a non-disabled person in the same position as the claimant.  Mr Malcolm had sublet his council flat in breach of the terms of his tenancy but claimed that, as this act was related to his disability, the council’s act in seeking possession of the flat was related to his disability, was discriminatory and had to be justified.  The House of Lords held that the comparator should be a person who, for a reason other than disability, sublet his flat in breach of his tenancy.  As such a comparator would have been treated the same as Mr Malcolm, there was no less favourable treatment and the claim failed.  Malcolm also decided that it was necessary for the employer to have real or imputed knowledge of the claimant’s medical condition although it was not necessary for the employer to know that the employee suffered from a disability within the meaning of the DDA.
 
23.	In order to prove facts from which the tribunal could conclude that discrimination has occurred, the claimant must show detriment.  The House of Lords decision in Shamoon v Chief Constable of the Royal Ulster Constabulary [2006] UKHL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings.  The concept of detriment is broad in scope but it is not without limit.  The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment.  It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment.  It is an objective test which must be applied.

24.	The burden of proof provisions apply to this aspect of discrimination as follows.  The employee must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that, for a reason relating to his disability, he has been treated less favourably than a person without his disability but otherwise in his position, has been treated, or would be treated.  If the employee does prove such facts the burden of proof shifts to the respondent to show that the employee has not suffered the less favourable treatment for a disability-related reason or, if he has, that the treatment was justified.  

25.	In order for the treatment to be justified the reason for the treatment must be both material to the circumstances of the particular case and substantial.  This is an objective test which is akin to the “band of reasonable responses” test applicable in the unfair dismissal sphere. In order for the respondent to prove justification the reason for the treatment must be both material and substantial, that is, it must carry real weight.  This is a less demanding test than the reasonableness of adjustments.    The tribunal should not substitute its own view and it is a low threshold for the employer to surmount.  These principles were made clear in Jones v Post Office 2001 CA.  

26.	Harassment
	Harassment is defined at Article 4A of The Race Relations (Northern Ireland) Order 1997 (referred to below as “the RRO”).

	“4A. – (1)… a person (“A”) subjects another person (“B”) to harassment in any  circumstances  relevant for the purposes of any provision referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, A engages in unwanted conduct which has the purpose or effect of –
	
	(a)	violating B’s dignity, or
	(b)	creating an intimidating, hostile, degrading, humiliating or offensive 
		environment for B.

(2)	 Conduct shall be regarded as having the effect specified in sub-paragraph (a) or (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it could reasonably be considered as having that effect.”

27.	The burden is on the claimant to prove facts from which the tribunal could conclude that he suffered such unwanted conduct related to race, which had the required purpose or effect.  If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to his race or that it did not have the alleged purpose or effect.

28.	Direct Race discrimination  
	Article 3 of the RRO states:-

		“3.(1)  A person discriminates against another in any circumstances relevant for 
		the purposes of any provision of this Order if –

			(a)	on racial grounds he treats that other less favourably than he treats or 
				would treat other persons; or …”
		….

29.		Legislative provisions relating to Police Training	                   

	The Police (Northern Ireland) Act 2000 (referred to below as “the Police Act”) at Section 35(3) requires a person to serve as a police trainee before he or she can be appointed to the rank of constable in the Police Service of Northern Ireland.  Section 41(3) of the Act gives power to the Secretary of State to make regulations as to the government, administration and conditions of service of police trainees.

30.	The Police Trainee Regulations (Northern Ireland) 2001 are the regulations made in pursuance of Sections 36 and 41 of the Police Act.  The two regulations in issue in these proceedings are regulations 3 and 6 and they state as follows:-

			“Conditions for appointment as Constable

	3 -   	A person shall not be appointed to the rank of Constable in the Police Service of Northern Ireland unless he has:-

(a)	completed a period of service as a police trainee of 145 days or such longer period as may be specified by the Chief Constable;

(b)	obtained such qualifications in Police Studies as may be specified by the Chief Constable;

(c)	completed to such standard as the Chief Constable considers satisfactory, such other training for service as a police officer as may be specified by the Chief Constable;

			Termination of the period of service of a police trainee

	6 –(1)  Subject to standing orders made under Regulation 7, the Chief Constable may by giving one week’s notice to a police trainee, terminate that person’s period of service as a police trainee if – 

(a)	the Chief Constable considers that the police trainee is not likely to become an efficient or well conducted Constable on completion of his period of service as a police trainee …”

31.	Exception for acts done under statutory authority     

	DDA at section 59 states as follows:-

			“Statutory authority and national security etc.

			59 – (1) Nothing in this Act makes unlawful any act done –

			(a)	in pursuance of any enactment; or

(b)	in pursuance of any instrument made by a minister of the Crown under any enactment; or

(c)	to comply with any condition or requirement imposed by a minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment.”

	Article 40 of the RRO provides for a similar exception for acts done under statutory authority.

32.	The House of Lords decision in Hampson –v- Department of Education & Science 1990 IRLR involved the interpretation of the exception in the Race Relations Act 1976 (the equivalent of RRO) for acts done under statutory authority.

33.	The House of Lords in that case decided that the exception did not cover the alleged discriminatory act.  The House of Lords made it clear that the exception should be narrowly construed as, if it were otherwise, it would preclude adjudication on every complaint of discrimination except in rare circumstances where a judicial review could be claimed.  In other words if the exception were widely construed it would have the effect of defeating the object of the anti-discrimination statute.  

34.	It was held that the Court of Appeal had been wrong to hold that, simply because the Secretary of State had acted in pursuance of regulations when deciding Mrs Hampson’s application, his alleged discriminatory act was therefore protected by the exception in Section 41 to the Race Discrimination Act.  Lord Lowry commented as follows on that approach;

		 “In my view it disregards and has to disregard the fact that in order to decide the application one way or the other, the Secretary of State had first to set up and apply a non-statutory criterion, the setting up and application of which involved the exercise of his administrative discretion and led to the discriminatory act complained of.  What I would venture to describe as the fallacy of that approach can be recognised when one reflects that almost every discretionary decision such as that which is involved in the appointment promotion and dismissal of individuals in, say, local government, the police, the National Health Service and the public sector or the teaching profession, is taken against a statutory background which imposes a duty on someone, just as the Regulations of 1982 imposed a duty on the Secretary of State”.        

Conclusions

General
35.	The tribunal took into account firstly, the claimant’s submissions and any submissions made in his supplementary statement on the facts and the law in so far as they were relevant to the issues before us, and secondly, the respondents’ counsel’s submissions on the facts and law.

36.	The tribunal finds it to have been a legitimate matter for the respondents to take into account in assessing what adjustments were possible for the claimant operationally, that there were serious concerns about the training and standard of probationers generally.  It was reasonable to factor into the assessment of what could be done for the claimant as a probationer, the fact that there already were problems with probationers and the standard they achieved.  It was in order for Inspector McConnell and others to have an eye to the wider organisational issues about probationers given that problems with performance or the standard attained affected the vast majority of people who had attested according to Chief Superintendent Skuce in his division.

37.	The tribunal does not understand why the behavioural issues outlined above, were not raised with the claimant by the PSNI trainers.  Concerns over these behavioural issues formed part of the decision to terminate his services.  However, we are mindful that we are not dealing in this case with a disciplinary dismissal but, rather,  with a disability discrimination case.  We simply have no evidence, other than the PSNI officers’ suspicions, that the behavioural issues were related to the claimant’s disability.  Our focus is therefore on the acts connected to the claimant’s disability.

38.	In the tribunal’s view it was commendable of the respondents not to tell the claimant that his services were to be terminated before his exams, to enable him to have a good chance to pass the exams and to leave with dignity having something to show for his time in training.

39.	The claimant asserted throughout his case and at hearing that it was the failure in the baton exercise that led to his termination.  The claimant’s case was that if he had been allowed to re-sit the baton exercise he would have passed and he therefore would have attested as a police officer.  Neither of these points were correct.  Firstly, the decision that adjustments were not possible had already been made before he did the baton exercise.  Secondly, it was not the case that he had been told by Chief Inspector Kernohan that if he passed his exams and his paperwork he would attest as Chief Inspector Kernohan had made it clear that he was “getting a second opinion” and Chief Inspector Kernohan was clear that the claimant was being assessed as a whole and not just on his paperwork and exams.

40.	A large element of the claimant’s case was that there was an agenda to get rid of him.  The tribunal rejects that.  The respondents went beyond what was necessary to keep the claimant on the course.  It was very clear from all of the police witnesses that there was a genuine concern for the claimant’s welfare and that the claimant was liked on a personal level.  At hearing there was palpable shock and dismay on the part of the witnesses regarding the attacks on their integrity and motives in view of all the steps and the extensive efforts that were made by them to help the claimant and facilitate him.  The claimant knew that he was not doing well from the beginning of the course and it was clear that the close monitoring of his performance was part of the established PBS scheme on which he was legitimately put because of the standard of his work.  

41.	In summary there was simply no evidence that there was an agenda to get rid of the claimant.  If the claimant had been right in that allegation, such an agenda to get rid of him would have involved a very extensive conspiracy requiring the compliance of not only very senior officers but of an independent psychologist Dr McQuoid and of a psychologist Mrs Hendley.  Having carefully observed the PSNI witnesses giving evidence and having weighed up their evidence in the light of the documentary evidence, the tribunal utterly rejects the contention that such a conspiracy took place.

42.	Part of the claimant’s claim was that the PSNI were deficient in not having a written policy on how to deal with individuals suffering from dyslexia.  The tribunal rejects this part of the claimant’s claim as it is clear that the respondents had a policy in operation in that the claimant was referred for assessment by an Educational Psychologist, those recommendations were interpreted by an Occupational Psychologist, the matter was discussed with the claimant and adjustments were put in place following the discussions with him.  The tribunal therefore does not find it to be a flaw that there was no written or specific policy on dyslexia or dyspraxia.   It is clear from the acts of the PSNI trainers and of the in-house psychologist that a policy existed in practice.  

Race

43.	There is a real issue in this case as to whether or not an individual can suffer direct race discrimination on the grounds of having an accent from the Republic of Ireland as compared to the treatment that would be afforded to someone with a Northern Ireland accent.  However setting aside the issue of whether the act complained of was capable of amounting to race discrimination, it is for the claimant to prove facts from which the tribunal could conclude that the act complained of was an act of discrimination on grounds of race. The tribunal rejects any claim of direct discrimination as no evidence at all was offered to show that termination was because of race.  Chief Inspector Kernohan made the decision to terminate following his own assessment and there was no allegation that the claimant’s race played a part in that decision.  The claimant has therefore failed to prove facts from which we could conclude that termination of his training contract amounted to an act of direct racial discrimination, so that element of the race case fails.

44.	On the race harassment claim the context was that Inspector McConnell could not understand the claimant because he had become very agitated and spoke very quickly.  The tribunal therefore finds no evidence that the comment was related to the claimant’s race as we accept Inspector McConnell’s evidence that he would have made that comment to anyone if their accent contributed to their unintelligibility.  If we are wrong on that point, the tribunal concludes that the conduct complained of could not reasonably be regarded as having the necessary effect on the claimant’s dignity given its context.  The burden of proof does not therefore shift as the claimant has not proved facts from which we could conclude that the conduct related to his race nor has the claimant proved facts from which we could conclude that it had the required purpose or effect of violating his dignity or creating the requisite adverse environment for him.

Exception for acts done under statutory authority
 
45.	The principle established by the Hampson decision is that an act done in the necessary performance of an express obligation in the instrument is covered by the exception set out in Section 59.  In this case the act was the non-appointment as an attested Constable because of the obligation under the Police Trainee Regulations, namely that the claimant had not completed the training to the standard set by and considered satisfactory by the Chief Constable in that the claimant failed the baton exercise in the PSP.  The question for the tribunal is: was there an express obligation on the face of the Regulations which required Chief Inspector Kernohan to terminate the claimant and thus deny him appointment as a constable?  Another way of putting the question is:  was the act of non-appointment as a constable necessary to comply with the statutory enactment?

46.	The Chief Constable had the power to refuse to appoint the claimant if he did not meet the standard that he considered satisfactory, that is the standard that the Chief Constable had determined.  This standard was not on the face of the legislation therefore it cannot be said that the act of non-appointment was necessary to comply with an express obligation in the instrument.  The alternative would be that the PSNI was not covered by the DDA in respect of officers in training.  

47.	In reaching this decision, the tribunal had regard to a detailed commentary on the scope of the exception under DDA, in a 2009 textbook entitled “Disability Discrimination in Employment” by King & Oulton,  at page 87 where it states:  

		 “It is only in cases where a statutory obligation is specific in its requirements, leaving an employer with no choice other than to act in a particular way, that the provisions of the DDA 1995 may be overridden.”

48.	The commentary then goes on to give an example of a case where the exception was successfully invoked in 2004, Lane Group PLC and North Somerset Council –v- Farmiloe where it was held that health and safety obligations “trumped” the requirement to make reasonable adjustments under DDA.  The commentary also states:

		 “It is the context of health and safety legislation that this exemption is most likely to be raised as a defence by employers.  However, such defences will be carefully scrutinised.  If employers are too easily allowed to side step the duties they owe to disabled employees by citing health and safety reasons, the whole purpose of the DDA 1995 would be defeated.”

49.	In the claimant’s case it was not inevitable that simply because he failed the baton exercise his service would be terminated.  Leaving aside the issue of whether there was an obligation to make reasonable adjustments for the claimant, it was open to Chief Inspector Kernohan to give the claimant more feedback until he understood where he had gone wrong, to allow him to resit the baton exercise or to allow him extra time for that exercise or to change the pass mark.  There were various possibilities open to the Chief Constable in relation to the standard he had decided upon and in our view, therefore, this element of discretion, or room for manoeuvre, means that it could not be said that termination was required in order to comply with the obligation in the instrument.  Whether exercising those options could amount to a reasonable adjustment is the question and our conclusion is that that question is to be determined by us within the framework of the DDA.

50.	In reaching this conclusion the tribunal is mindful of the legislative history relating to  the coverage of the PSNI by DDA.  As originally enacted, the DDA did not cover the Police and the Army as they were specifically excluded from its coverage.  This changed in 2004 when amended Regulations brought the Police (but not the Army) within the scope of the DDA.  This was achieved by Regulation 25 of the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 which inserted a new Section 64A and 64B in DDA.  If Parliament saw fit to bring the Police within the scope of the DDA in this way the tribunal finds it hard to see why Parliament would allow a wide exclusion to subsist via the circuitous route of Section 59 of DDA in conjunction with the Police Trainee Regulations and the Police Act, when Parliament’s clear intention was to bring the Police within the scope of DDA.  The effect of allowing the exclusion to apply in this case would be that there would be no obligation whatsoever on the PSNI to consider reasonable adjustments for any trainee officer with any form of disability.  This cannot be right nor do we find it to be the legal position.

51.	As we have dismissed the race case for the reasons outlined above we do not need to consider the equivalent exception outlined at article 40A of RRO. 

52.	Duty to Make Reasonable Adjustments

	As it was conceded by the respondents that the duty to make reasonable adjustments arose, the tribunal must identify firstly, the provision, criterion or practice (PCP) placing him at a substantial disadvantage; secondly, the nature and extent of the substantial disadvantage; and thirdly, must assess the potential reasonable adjustments in that light.  Counsel for the respondents conceded that as the duty to make reasonable adjustments is owed to the individual disabled person, the issue of comparators is not relevant in this part of the case.   

53.	Counsel’s submission was that the PCP was that one had to be assessed as likely to be an efficient and well-conducted constable and the disadvantage therefore was not being allowed to attest as a constable.  The tribunal’s view, however, is that the PCP applied to the claimant which placed him at a substantial disadvantage compared to those without his disability was that, both in training and operationally, the claimant was required to achieve a minimum standard in his training.  He had difficulties achieving the standard because of his problems with paperwork and processing of information. The claimant’s key problems related to his functioning and this went to the heart of his ability to do the job of a police officer.  These problems with his functioning were because of his disability and they placed him at a substantial disadvantage because they led, ultimately, to the termination of his services.  

54.	The claimant’s case on reasonable adjustments essentially fell into two parts namely the adjustments required for the training period and the adjustments required for him to operate after attestation as a Probationary Constable and beyond.  

55.	Whilst it was not for the claimant to suggest adjustments at the time, at hearing the tribunal had to have before it  specific adjustments which it was  alleged should have been considered and put in place at the relevant time.  This is clear from the case of Project Management Institute v Latif 2007 IRLR 579 EAT.  Otherwise the respondents would have to prove a negative, that is, that there were no reasonable adjustments that could have been put in place.

56.	Having established the PCP and substantial disadvantage the tribunal then considered each suggested adjustment to determine whether the claimant had proved facts from which it could conclude that the duty to make reasonable adjustments had been breached.

57.	The tribunal took account of the provisions of the Code of Practice in assessing the reasonableness of adjustments. 

58.	The claimant at hearing suggested that in relation to the briefing exercise, he should have been given time to rehearse the written answer or he should have been given the written details so that he could practise taking down the details when they were called out to him. Whilst this might have amounted to an adjustment, the tribunal does not regard it as reasonable to make that adjustment in the circumstances of this case as this would have defeated the object of the test.

59.	Counsel for the respondents invited the tribunal to assess the claimant’s potential to perform as a police officer from his performance in the tribunal.  The tribunal declines to do that as that is not our function.  However, we carefully observed the claimant’s demeanour and manner of presenting his claim and note that the claimant produced a statement and a lengthy supplementary statement with the help of legal advice setting out his claim.  Despite this he raised new points in his claim during his cross-examination and attempted to raise new issues in his claim right up to closing submissions.  At times the claimant’s evidence and questioning was confused and indeed unintelligible and it was clear that at times the claimant struggled to take in information despite it being repeated in very simple terms to him.  The tribunal’s assessment of the claimant’s abilities in this regard is relevant to the reliability of his evidence and also had a bearing on the tribunal’s finding that the PSNI witnesses’ account of the claimant’s reaction at various meetings accorded with the tribunal’s assessment of him in tribunal in that he appeared to absorb selectively the information being imparted to him.  

60.	Several adjustments were made in the training, namely the 25% extra time given for the exams and the spellchecker which the claimant used.  The tribunal accepts that Mrs Hendley went through all the recommendations of Dr McQuoid and sought to put in place those which the claimant accepted.  With the benefit of the adjustments that were put in place and with the benefit of the extensive and excessive help and practice that he and the trainers and colleagues put in, the claimant was able to pass most elements of the course.  As the claimant conceded, Chief Inspector Kernohan’s assessment of him did not rely solely on the paperwork and the exam results but on assessing him as a whole in a potential operational role.  The tribunal is satisfied that the respondents explored adjustments and is also satisfied that their rejection of any further adjustments to enable him to attest and be operational was reasonable.  The tribunal’s conclusion therefore is that the respondents complied with the duty to make reasonable adjustments at the time.  The suggested adjustments at hearing would not have been reasonable and the fact that they were not considered or put in place did not amount to a breach of the duty to make reasonable adjustments.  

61.	The tribunal accepts that the respondents complied with their duty to make adjustments in the training course.  They put in place the recommendations which the claimant accepted.  It was not for the respondents to force adjustments on the claimant if he was adamant that he would not accept them.  For example, he did not want to use the read-aloud software nor the offer of doing the assessments in a room on his own and he did not accept the offer of re-coursing on 29 March 2006. 

62.	The respondents also made reasonable adjustments in the PBS procedure in that they extended the timescale twice to give the claimant more time to gather evidence and to improve.  The claimant was re-coursed for developmental purposes to the Green course.  He was given extra assistance by the trainers throughout the course and Sergeant McRoberts was assigned to him when he started with the Green course.  The claimant was not dismissed on 12 May 2006 when the respondents could have dismissed him at that stage under the PBS procedure and more time was spent by the respondents exploring possible adjustments.   All of the foregoing amounted to adjustments in compliance with the respondents’ duty under the DDA.  

63.	Part of the claimant’s case was that he should have been taken off the PBS procedure once the respondents knew that he was disabled following the assessment by Dr McQuoid.  What the respondents did was to operate the PBS procedure, albeit amended and extended, in tandem with the DDA assessment procedure and both procedures culminated in the meeting with Chief Inspector Kernohan when his services were terminated.  In the tribunal’s view it was not necessary for the employer to remove the claimant from PBS procedure as part of its duty to make reasonable adjustments.  There is nothing in the DDA, the Code of Practice nor in the case law which requires an employer to retain a disabled person come what may regardless of whether or not they meet a minimum standard.  The respondents ran the PBS procedure in tandem with the DDA assessment and this in the tribunal’s view was not contrary to their obligations under the DDA.  

64.	The second element where the duty to make reasonable adjustments arose, was in relation to the adjustments which could be put in place to enable the claimant to perform operationally as a probationary police officer and beyond as a fully fledged police officer.  The tribunal regards it as in order for the respondents to have assessed the claimant in Garnerville with an eye to how he would perform in the operational situation.  Having found that the claimant could only pass his training course with extensive help and excessive preparation time in a safe learning environment, and where grave concerns about the claimant’s abilities remained at the end of the assessment period, it would be strange indeed if the respondents could not have taken account of how the claimant would be able to cope in an operational setting.  The essence of the whole assessment in Garnerville was whether or not an individual would make a competent and efficient police officer.  This was the test that was applied to trainee officers when making the decision as to whether or not they were capable of attesting as probationary constables.  The aim of the training period was not just to get an individual through the exams but to look at the whole person to see how they would emerge as a police officer.  This was a valid and necessary approach which was taken by the respondents.

65.	The claimant suggested that one-to-one weekly tutorials with a supervising police officer during his probationary period should have been considered to enable him to attest and proceed to probation.  This was not feasible because of the level of supervision on the ground, particularly when set against a background where there were concerns about the standard of probationers in general.  In addition there was no evidence that one-to-one tutorials would actually address the problems which the claimant had related to his disability.  The claimant’s problems were with paperwork and with processing of information.  The tribunal finds that even if the one-to-one weekly tutorials had been feasible, they would not have addressed the claimant’s problems and therefore could not amount to reasonable adjustments under the DDA.

66.	The claimant suggested that he be given a dictaphone to use whilst going about his duties in the field and that he have a secretary assigned to transcribe his dictated notes.  The tribunal finds that it would not have been practicable to bring along a dictaphone to, say an assault situation, and in any event the uncontested evidence of the respondents was that dictaphones were not used operationally as there was no way to date and time them in sequence.  It is hard to see how this adjustment would have helped the claimant with his difficulties in processing information  and we therefore conclude that this would not have amounted to a reasonable adjustment.

67.	The claimant suggested that he could have been given a laptop to use operationally.  The respondents’ uncontested evidence was that laptops are not used operationally for security reasons.  It was not clear to the tribunal how the use of a laptop would have addressed the claimant’s problems.  We do not find it reasonable to make this adjustment in the circumstances.

68.	The claimant suggested that a “pilot study” should have been undertaken to see whether or not it was reasonable to try the claimant out in an operational setting.  The tribunal does not regard this as reasonable adjustment under the DDA as the nature of the job is such that it would simply have been reckless for the PSNI to have tried the claimant out operationally without being sure as to the steps that could be taken to facilitate the claimant to overcome the problems that he had.  The nature of the job and the duty owed to the public in general, to victims of crime, to police colleagues and, indeed, to the claimant himself meant that this was not an option in the tribunal’s view.

69.	The claimant suggested that the respondents should have consulted experts such as the British Dyslexia Association and other Police Forces in the UK to see if there was anything that could be put in place for him.  Chief Inspector Kernohan said that he had contacted the Association of Chief Police Officers (ACPO) and was assured that a UK wide standard was being applied.  Chief Inspector Kernohan explored the one-to-one tuition in pursuance of the reasonable adjustments duty, but found that it was not the standard that was applied anywhere in the UK and it was not feasible on the ground in the districts that the claimant was to be assigned to.   In any event, the tribunal has found that this adjustment would not have addressed the claimant’s problem.

70.	The claimant suggested that he should have been made a “Community Police Officer”.  In the rest of the UK there is a “Community Reserve Officer” which seems to be akin to a Garda Reserve Officer, that is a lesser form of police officer than a regular police officer.  There is no equivalent of this in Northern Ireland.  The tribunal agrees with the respondents that it would not have been a reasonable adjustment to appoint the claimant as a Community Police Officer as this would not have solved the problems which the claimant had, as a large proportion of the job involved the very things which gave the claimant problems, namely dealing with stressful situations, taking in information, recording information accurately and recounting it accurately to others. 

71.	The claimant suggested that he should have been offered the opportunity to be on the Police Exchange as an operator on the 999 calls.  The 999 phone-line is staffed by experienced officers as it is a very pressurised job requiring experience and great accuracy.  The tribunal does not regard this to be a reasonable adjustment as it would not have addressed the claimant’s problems with paperwork and processing information.  The evidence was clear that the claimant’s abilities in those regards would deteriorate when under pressure and it was uncontested evidence that this was a pressurised job.

72.	The claimant suggested that he should have been offered the opportunity to be on the non-emergency telephone calls in the Police Exchange. The non-emergency phone line has been staffed by civilians for some years. The claimant also suggested that he should have been placed on security gates at a police station.  This role has been performed by civilians for some years.  The tribunal does not regard it as a reasonable adjustment to place the claimant in either of these civilian roles given that the claimant appeared to be suggesting that he should be placed as a  police officer doing a civilian job whilst being paid as a policeman.  To be fair, the claimant appeared to put forward the latter two suggestions half-heartedly given that they did not square with the clear evidence that his burning ambition for many years had been to be a police officer.

73.	The claimant said that a special job should have been devised for him, perhaps on “restricted duties”.  The claimant did not specify what he meant by restricted duties but he referred to the treatment of other officers, for example those who had become physically disabled whilst serving.  The PSNI has a history of finding jobs for such officers when physical disability precludes them from carrying out certain parts of the job.  The respondents’ evidence, which the tribunal accepts, was that the difference between these officers and the claimant was that they were experienced officers who had reached the standard necessary to attest as police officers and there would have been no question-mark over their mental capabilities.  The difference with the claimant was that the query was over his mental capabilities and a “desk job” was not really an option for him because of his difficulties with paperwork and processing information and accuracy.  Again such a job would not have addressed the claimant’s problems in that the difficulties related to his disabilities would still have manifested themselves and our conclusion is, therefore, that it would not have amounted to a reasonable adjustment in this case to have created a special job to fit around the claimant’s difficulties.

74.	The claimant said that the respondent should have spoken to more experts as part of the reasonable adjustments duty particularly as Inspector McConnell in his report of 10 May 2006 recommended a referral to a clinical psychologist.  In the tribunal’s view, the PSNI staff had spoken to enough experts to help them discharge their duty in that they had an Occupational Psychologist, an Educational Psychologist and Chief Inspector Kernohan had spoken to ACPO and the District Command Units relating to one-to-one tuition.  The other possible adjustments put forward by the claimant at hearing were not aired nor were they specifically considered at the time by the PSNI.  However, this does not amount to a failure in their duty to make adjustments particularly as we have decided that they would not have amounted to reasonable adjustments in this case.

75.	The claimant’s problems relating to his disability were in relation to the quality of his paperwork and the accuracy of his paperwork and processing information.  The claimant essentially wanted to practise and rehearse all the time and have excessive amounts of time to prepare paperwork.  This simply was not possible in an operational setting.  The tribunal regards it as reasonable for the respondent to maintain a minimum standard, that is, it was reasonable for them not to contemplate dropping their standards to admit the claimant as trainee officer when he was unable to meet the standard required without excessive help and preparation to enable him to attest.  

76.	The claimant’s attack on Chief Superintendent Haylett’s involvement essentially was that he did not consider enough adjustments and that there was a pre-determined outcome to the appeal.  We accept that Chief Superintendent Haylett looked at the matter afresh with an open mind and discharged his duty fairly as there was no other adjustment that he could have come up with given the assessment of the claimant’s problems.

77.	Whilst the claimant accepted that he required help and adjustments in relation to training and indeed said that he should have been given more help in relation to his training he maintained that he could still be an operational police officer without further help.  The claimant went into the possibility of adjustments operationally because he said that that would address the concerns of the PSNI about his ability to perform operationally.  However, he maintained throughout the case that he needed no adjustments as he could be an effective police officer as he was.  This denial by the claimant of his problems, did not absolve the PSNI of its duty to make reasonable adjustments.  In the tribunal’s view however, the claimant’s denial underlines his underestimation of his problems as he simply did not appreciate what being an operational police officer involved vis-à-vis the difficulties which were related to his disability.  In any event, the PSNI complied with its duty to make reasonable adjustments in this case.

78.	Disability-Related Discrimination 

	The claimant was terminated under regulation 6(1)(a) of the Police Trainee Regulations because he was not likely to become an efficient or well-conducted constable on completion of his period of service as a police trainee.  The alleged discriminatory act therefore was the termination of his services and it was related to his disability because the reason underlying it was in relation to his performance on the course.  The disability-related reason for termination was the failure to reach the required standard in paperwork and paperwork associated with scenario based exercises.  The comparator under Malcolm therefore is someone terminated for that reason where the failure to meet the standard is not related to a disability.  

79.	Whilst the behaviours were an element in the decision to terminate, it is not at all clear that these related to his disability. Again the tribunal is not engaged in dealing with an unfair dismissal claim following a disciplinary process.  The failure to draw the behaviours to the claimant’s attention was therefore not a flaw in the decision to terminate the claimant’s services in this case as the effective cause of his termination in our judgement, was his substandard ability to deal with paperwork and process information accurately, that is, a reason related to his disability.  The fact that a part of the decision related to the claimant’s behavioural issues does not affect the tribunal’s assessment or decision in relation to the disability-related discrimination claim.

80.	It is for the claimant to prove facts from which the tribunal could conclude that the act resulted in less favourable treatment of him compared to a non-disabled comparator in similar circumstances. It is only then that the burden of proof shifts to the respondent to disprove discrimination or to show justification. There was no evidence that a person in similar circumstances for a non-disabled reason, that is, someone who failed to meet the standard and in respect of whom there were concerns about the ability to process information, record information and deal with information accurately, was treated differently.  

81.	On the hypothetical comparator, there was evidence that other officers who were deemed, for various reasons, not likely to become efficient or well-conducted constables had had their service terminated too.  The tribunal therefore infers that a hypothetical comparator would have been treated the same as the claimant.  

82.	As the claimant has not shown less favourable treatment than a real or hypothetical comparator, his claim must fail.  The claimant’s claim that the termination on 9 June 2006 constituted less favourable treatment for a reason related to his disability is therefore dismissed.

83.	Even if the claimant had shown less favourable treatment the respondent would successfully have raised a justification defence in the tribunal’s view.  The justification here relates to the assessment by the PSNI training authorities as to whether the claimant was suitable to become an operational officer.  The PSNI decision following that assessment was both material and substantial and therefore met the justification threshold given the adverse ramifications if a sub-standard officer had been appointed.  Those adverse ramifications related to the impact on the protection of the public, the investigation of crime, the apprehending of offenders and the securing of prosecution not to mention the impact on the claimant himself, the claimant’s potential colleagues and on the organisation as a whole.  These were matters that the PSNI were entitled to take into account in making their decision.  

84.	The respondents’ reason for the treatment was the necessity of maintaining standards and this was particularly important in the case of this job of being a police officer given the role of a police officer in society and its importance and given also the stressful situations which a police officer would have to deal with on a day-to-day basis and the importance of accuracy in paperwork given that court proceedings would stand or fall on the accuracy of the police officer’s notes in the investigation. 

85.	The tribunal wishes to record that, far from there being an agenda to get rid of the claimant, the PSNI officers demonstrated a commendable caring and facilitative approach towards him.  They could only go so far in this case however, and we repeat that the duty to make reasonable adjustments under DDA does not require a respondent to facilitate adjustments come what may, especially with a job such as that of a police officer where a minimum standard is of such vital importance.  

86.		The tribunal has found this to be a sad case where no one has doubted the claimant’s determination, ambition and diligence.  Unfortunately, this is clearly a case where, with the claimant’s limitations, the work of a police officer was simply not for him, as no reasonable adjustments were possible for him.   

87.	The claimant’s claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing:	11-13 May 2009, 15 May 2009, 18-21 May 2009, 
					26-29 May 2009 and 3 June 2009, Belfast	

Date decision recorded in register and issued to parties: