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LTL 25/1/2011, Employment Appeal Tribunal - Ben Cooper QC
The Claimant was appointed to the office of probationary police constable by the Respondent in February 2006. By December she had decided to hand in her notice. The Respondent sought, unsuccessfully, to persuade the Claimant to withdraw her resignation. However, she did not and her resignation took effect on 17th January 2007.
The Claimant visited her GP on 26th January who diagnosed her as suffering from depression. The Claimant contacted the Respondent on 31st January 2007 and sought to retract her resignation and be reappointed to her previous position, stating that she had resigned in a distressed state of mind brought about by her depression.
The Respondent denied her request on the basis that there was no provision under the Police Regulations 2003 (‘the Police Regulations’) for reappointment and therefore there was no power to grant it.
The Employment Tribunal found that although the duty to make reasonable adjustments under s16A of the Disability Discrimination Act 1995 (‘DDA’) was engaged, this had been discharged by the Respondent in considering the Claimant’s request. Having decided, rightly in the Tribunal’s view, that there was no power to reappoint under the Police Regulations without going through the “statutory procedure” set out in Regulation 10, the Respondent was correct in denying the request as it could not be reasonable to do something which the Respondent did not have the power to do. The Claimant appealed.
His Honour Judge Peter Clark gave the judgment of the Employment Appeal Tribunal (‘EAT’). He noted that there was no express prohibition on reappointment under the Police Regulations. Furthermore, regulation 10 did not set out a statutory procedure, but rather substantive criteria that an applicant for the role of probationary constable would be required to fulfil. The Claimant met these criteria when she was first appointed to this position. There was, therefore, no reason to interpret the Police Regulations as preventing reappointment in the way sought by the Claimant.
The EAT then went on to examine the nature of the duty to make reasonable adjustments under s16A(4)and (5) stating that it was to be applied in the same way as s4A(1). Referring to Archibald v Fife Council  IRLR 651, HL, the EAT reiterated the positive nature of the duty to make reasonable adjustments required under the DDA and drew a comparison with the facts in Archibald, where the House of Lords found that it would have been a reasonable adjustment to allow the disabled claimant to be transferred to a new position in the local authority without going through a statutory competitive interview process.
The EAT held that in this case, it was clear from the fact that the Respondent had sought to persuade the Claimant to withdraw her resignation right up until the effective date of termination, that the only reason for refusing the Claimant’s request after that date was the Respondent’s misinterpretation of the Police Regulations. Once the correct construction was applied to the Police Regulations, in the circumstances the positive duty under the DDA required the Claimant’s request to be granted.
The EAT therefore upheld the Claimant’s appeal, substituted its decision for the tribunal’s and remitted the claim back to the tribunal to decide the issue of quantum.
Ben Cooper appeared on behalf of the Appellant, instructed by Russell Jones & Walker