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5th August 2010

PERCEPTION OF DISABILITY

Aitken v Commissioner of Police of the Metropolis

The Disability Discrimination Act requires claimants to have an actual disability, unless they have an association with someone who has a disability in which case they are also covered. In Aitken v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal (EAT) rejected the argument that the definition should be extended still further to include discrimination on the basis of a “perceived” disability.

Basic facts

Mr Aitken, a police constable, was diagnosed towards the end of 2005 as having obsessive compulsive disorder (OCD) and a tendency to binge drink. At a Christmas social that year, he admitted to fantasising about punching a female officer’s nose and wanting to beat his girlfriend’s head in. He was angry and aggressive intermittently.

He was put on special leave but in February 2006 was considered fit to return to an office-based role with no public contact. However there were further incidents of inappropriate and aggressive behaviour and in June, he was told that he might have to retire early.

He went on sick leave in October 2006 and although the Met accepted that he was disabled for the purposes of the DDA, it retired him on medical grounds in early 2008 because it could not find him a role that did not involve contact with the public either in person or on the phone.

Tribunal decision

Mr Aitken claimed direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments. He argued that his behaviour was so closely connected to his disability that it should be considered part and parcel of it and that the reason he had been treated in the way he had was because of his employer’s “perception” that he had a dangerous mental illness, contrary to the decision of the European Court of Justice in Coleman v Attridge Law.

The tribunal disagreed, saying that the reason for his dismissal was not because of a perception that he had a dangerous mental illness, but on the “basis of how he appeared to others”; and that it was reasonable for the force to take into account that a police officer should not present a danger to colleagues or to members of the public.

EAT decision

The EAT upheld the decision of the tribunal, concluding that:

• The DDA requires an actual disability and although the decision in Coleman extended the application of the Act to include someone associated with the person who has a disability, the DDA does not apply to less favourable treatment because of a “perception” that an employee is disabled
• Mr Aitken’s behaviour should not be “stripped out” when assessing a comparator for his treatment. The approach tribunals must take is that “the disability is to be removed from the equation and the relevant circumstances of the comparator are to be the same as or not materially different from those of the disabled person”. Here, the “relevant circumstances” included the bad behaviour.which was connected with the disability but was not to be regarded as the disability
• As for assessing the reasonableness of the adjustments, the EAT said that the tribunal “was entitled to have regard to the need that a police officer should not appear to present a danger to colleagues or the public”.

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