John Butcher v The Chief Constable of Lancashire Police — 2023

The claimant, a former police officer, retired on ill-health grounds on 20 October 2020 after a long period of sickness absence and medical assessments concerning back pain, depression and PTSD. He then applied for a civilian PND Operator role, was interviewed, and received a conditional offer on 8 December 2020. After occupational health review, the respondent withdrew that offer in February 2021 on the basis that he was not medically suitable for the role.

On the section 15 claim, the tribunal found that the respondent's treatment was because of something arising in consequence of disability. It held that Sarah Scott's intervention was predominantly driven by the fact that the claimant had only recently gone through the ill-health retirement process and by suspicion about his long sickness absence and the apparent inconsistency of applying for work so soon after retirement. The tribunal accepted that the respondent relied on legitimate aims, including not undermining the ill-health retirement process and ensuring that PND operators were capable of performing the duties of the role, but held that the withdrawal of the offer was not a proportionate means of achieving those aims.

In reaching that conclusion, the tribunal noted that the respondent relied on older medical evidence from the ill-health retirement process, did not carry out a fresh up-to-date medical assessment specific to the PND role, and did not explore less discriminatory alternatives such as a new assessment or a probationary approach. It also noted that the respondent did not put any suspicion of improper ill-health retirement directly to the claimant, and that the appeal panel later upheld the original decision without hearing from him. The claimant was found entitled to a remedy, but quantum was left to be agreed or determined later.

The direct discrimination claim under section 13 failed. The tribunal accepted that the respondent had concerns about the claimant's cognitive abilities and fitness for the role, but held that those concerns were based on the medical evidence available and were not stereotypical assumptions about disability. The tribunal therefore dismissed the direct discrimination allegation while recording that no remedy had yet been determined on the upheld section 15 claim.