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Chief Constable of South Yorkshire Police v Jelic

Mr Jelic was employed as a police constable for South Yorkshire police from 1997 to 2002. He became unwell and went off sick for approximately five…

Facts

Mr Jelic was employed as a police constable for South Yorkshire police from 1997 to 2002. He was seconded to another department in 2002, where he became unwell and went off sick for approximately five months. An initial diagnosis of occupational stress was made by the Respondent's Occupational Health (OH) doctor. Another medical assessment was carried out by OH when the Claimant returned to work. The OH doctor advised the Claimant could return to work on reduced hours and “recuperative duties”. However, following further periods of sickness absence between 2002 and 2004, the OH doctor recommended that the Claimant should return to work on reduced hours and “non-confrontational” duties. He was therefore reassigned to a different role within police staff which did not involve face-face contact with the public.

The Claimant flourished in his new role and had no significant period of absence over the next 3 years. He had by this time been moved to a similar role in another location. Throughout this three year period he was regularly assessed by OH. His diagnosis was revised to chronic anxiety syndrome, which, in the opinion of OH, 'would probably attract the provisions of the Disability Discrimination Act (DDA)'. Further, it was noted that the Claimant was not fit for front-line duties and there would be a need for the Force to “look for some sort of environment for him similar to the one he is currently in.” OH also reported that the Claimant's condition was unlikely to change before his normal retirement date. They also stated that in the event that his role changed and required more face-to face contact with the public, there would be no alternative but to consider moving him to another area of the organisation

In 2007, it was decided that the Claimant's role would be redefined, requiring him to deal directly with incidents and engage in face to face contact with members of the public. In light of the Claimant's OH reports and the recommendations and conclusions therein, a decision was taken by the District Commander and Head of Personnel to start the process to medically retire the Claimant because he could no longer meet the requirements of the role. The Claimant was assessed by an external doctor as part of this process who concluded that suitable, non-confrontational work would minimise further absences, but that the Claimant was permanently disabled from performing the full duties of a police officer. Following this, the Claimant was medically retired without any consultations or attempts to make reasonable adjustments. The whole process exacerbated the Claimant's condition and he went off sick until his medical retirement until May 2008. He had 5 years left until his normal retirement at this point.

The Claimant presented a claim to the Employment Tribunal on 4 July 2008, alleging that the Claimant would not have had to be medically retired if reasonable adjustments had been made.

The Tribunal's Findings

It was not disputed that the Claimant had a disability under the DDA, or that the Respondent was under a duty to make reasonable adjustments to accommodate the Claimant. The issue to be determined was if the Respondent had breached their duty by failing to make adjustments that were reasonable in the circumstances.

The Tribunal made the following findings:

  1. On the particular facts of this case, allowing the Claimant to continue in his current post was not capable of being a reasonable adjustment. The role had to change to ensure effective policing.

  2. Swapping the Claimant's role with an existing role that was already filled by another police officer was capable of being a reasonable adjustment. This was on the basis that this existing role did not require contact with members of the public and would have been suitable for the Claimant. Further, the current post-holder was not on restricted duties and would be able to perform the Claimant's role without any difficulty. While the Tribunal recognised that the current post holder would have to be consulted before being transferred, they found he could have been ordered to move whether he liked it or not, since the police force was a 'disciplined service'. Also, they clarified that swapping jobs was not equivalent to 'bumping' because the person being transferred into the Claimant's role was not losing his job, but was being given another role instead. It was also not the same as creating a role, as the post already existed.

  3. Immediately re-employing the Claimant in a civilian role after medical retirement was also capable of being a reasonable adjustment, particularly as a civilian role was being advertised at the time the Claimant's medical retirement was being considered.

Appeal

There were several grounds of appeal, the most pertinent of which were as follows:

  1. It was an error of law for the Tribunal to find that it would have been a reasonable adjustment to swap the Claimant's job with that of another person. The reasonable adjustments in s.18B(2) referred only to transfers to existing vacancies, not posts that were filled. The EAT dismissed the appeal on the basis that the examples of reasonable adjustments in s18B(2) were illustrative but non exhaustive, and therefore swapping post holders was not prohibited by law.

  2. The Tribunal had erred in law in finding that swapping the posts was capable of being a reasonable adjustment because the Respondent's failure to do this had not been identified as an issue in the case. As a result, real unfairness had been caused to the Respondent as there was insufficient evidential foundation for the Tribunal's finding that the posts could and should have been swapped. Further, the Respondent did not have the opportunity to adduce relevant evidence to put forth a defence. The EAT dismissed this ground of appeal on the basis that the Claimant's case was adequately identified and pleaded, and there had been no evidential insufficiency precluding the tribunal from finding that the jobs should have been swapped.

  3. The Tribunal erred in finding that it would have been an alternative reasonable adjustment for the Respondent to medically retire the Claimant and then immediately re- employ him in a civilian post. The EAT allowed the appeal on this ground on the basis that the Tribunals had given inadequate reasons for such a finding. The question of whether this particular adjustment was reasonable was not addressed by the EAT.

  4. The Tribunal had erred in law in finding that the Respondent had breached his duty to make reasonable adjustments by failing to conduct a search for suitable alternative roles for the Claimant. The EAT dismissed the appeal on the basis that the Tribunal had not found this failure alone constituted a separate breach of duty. They confirmed that there is no separate and distinct duty on an employer to consult a disabled employee about possible adjustments, although failure to do so will potentially jeopardise his legal position. The fundamental question is whether objectively, reasonable adjustments have been made or not. On the facts, the failure to consult simply demonstrated that the Respondent had not considered any reasonable adjustments at all.

Comment

It is clear from this case that the scope of the employer's duty to make reasonable adjustments is not limited to the examples listed in s18B(2) of the DDA 1996, and that swapping jobs to accommodate disabled employees can constitute a reasonable adjustment. Employers must now consider re-deploying disabled employees into both vacant and filled posts, although they are not under duty to create new posts to accommodate disabled employees. Although this case has broadened the duty on employers to make reasonable adjustments, it should be borne in mind that the EAT made it very clear that the 'special nature of the police service was as important part of the factual matrix in this case'. On the facts, swapping the disabled employee's role with another employee's job was a viable reasonable adjustment because police staff had to obey orders. It would follow that in less regimented organisations, swapping employees' roles may not be a realistic option. Nevertheless, it would be prudent for employers to provide evidence to substantiate that they have considered this adjustment. Consultation with the non- disabled employee occupying the relevant post will form a necessary part of this process. The decision not to swap posts can be justified under s18B(1).

Paul McFarlane, Partner, paul.mcfarlane@weightmans.com