Ms K Moth v The Chief Constable of Devon and Cornwall — 2019

The Respondent accepted that Ms K Moth was disabled at all material times. The tribunal found that she suffered from visceral hyperalgesia / regional pain syndrome, with anxiety and depression as part of the disability, and also had trigeminal neuralgia and fibromyalgia. The Respondent knew of the disability by the dates recorded in the reasons. The case was litigated against a background of long-running attendance management, use of Bradford Score triggers, and repeated occupational health involvement.

On reasonable adjustments, the tribunal accepted that the requirement for CID officers to work from the police station, the parking arrangements, the line-management structure and the routine use of Bradford Score were PCPs. It rejected the alleged PCP about time for exercise and Tai Chi. The tribunal found that home working was not shown on the facts to have put the Claimant at a substantial disadvantage, and that the existing parking reimbursement removed any substantial disadvantage from the parking arrangement. It also held that line management by the sergeant with operational responsibility did not of itself place the Claimant at a disadvantage.

The tribunal did, however, find that applying the Bradford Score without adjustment did place the Claimant at a substantial disadvantage because she was more likely than a non-disabled officer to have absences. It held that the Respondent should have made a rational, bespoke adjustment to attendance targets with occupational health input, rather than repeatedly applying the standard formula without modification. That was the only successful reasonable-adjustments point.

On discrimination arising from disability, the tribunal accepted that sickness absence arose from the disability and that attendance management was therefore treatment because of something arising in consequence of disability. It dismissed the complaints about the temporary sergeant application and the Leadership Academy application, holding that the Respondent was entitled to rely on the Claimant's attendance issues and performance position. The tribunal also dismissed the wider use of the UPP process, but held that the 9 July 2019 action plan was unjustified insofar as it required the Claimant to demonstrate progress towards the JRFT and officer safety training when Professor Harrison had already said those tests were not achievable for her.

On harassment, the tribunal confined its finding to the 9 July 2019 stage 1 UPP meeting. It found that DS Marvelly's comments about the Claimant's weight, diet and drinking Coca-Cola were unwanted conduct related to disability and had the effect of humiliating her. Earlier allegations of harassment were not upheld, including matters treated as out of time or not pursued. The tribunal therefore upheld the claim only in respect of that meeting.

No remedy figure was fixed at liability. The tribunal directed that, unless the parties could agree compensation and recommendations, there would be a one-day remedy hearing. It indicated that any recommendations would need to be SMART and could include permanent amended duties, adjusted attendance targets under the new attendance regime, disability training for managers, and protocols for handovers in respect of management obligations for disabled officers.