Mr M Cobbin (partner) For the v Respondent — 2017

The claimant was a police constable employed by the respondent until 24 December 2017. The tribunal accepted that he was disabled by reason of HIV, anxiety and depression, and that the respondent knew of those conditions. The complaints arose from the respondent's decision at a UPP 3 hearing on 24 November 2017 to dismiss him after a long history of sickness absence, including 413 calendar days' absence in the preceding three years and earlier UPP stages in 2016 and 2017.

The direct discrimination claim failed because the tribunal found that the reason for dismissal was the claimant's extensive sickness absence, not his HIV, anxiety or depression. It accepted the respondent's case that the appropriate hypothetical comparator was a non-disabled officer with a similar attendance record, and it found no evidence that such a comparator would have been treated differently. The tribunal therefore concluded that the dismissal was not because of disability.

The discrimination arising from disability claim failed at the justification stage. The tribunal accepted that maintaining a satisfactory rate of attendance across the workforce was a legitimate aim and held that the use of the statutory UPP procedure was proportionate. In deciding to dismiss, the panel took account of the claimant's long record of absence, the 20% disability-related adjustment already applied under policy, the support and adjustments previously given, and the fact that his private treatment at the Priory in August and September 2017 had only produced a short period of improvement after years of poor attendance. The tribunal considered the Priory treatment positive but, in context, too little, too late.

On reasonable adjustments, the tribunal accepted that two PCPs were established: requiring officers to attend work without exceeding permitted sick leave and subjecting them to stage 3 UPP meetings for extended absence. It rejected the alleged PCP of automatic dismissal above the threshold and held that the 20% adjustment was not itself a PCP. The adjustments sought by the claimant, including allowing him to continue in post or not progressing to UPP 3, were found not to be reasonable because his historic absence remained far beyond policy limits and a larger percentage adjustment would not have removed the disadvantage. On harassment, the tribunal held that the dismissal was related to disability because it was linked to disability-caused absence, but it found no purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. All disability discrimination complaints therefore failed and no award was made.