What is a disability?
The Disability Discrimination Act (DDA) defines a disability as:
"A physical or mental impairment that has a substantial and long term adverse impact on a person's ability to carry out normal day to day activities."
Types of discrimination
This occurs if a Force treats a disabled officer less favourably than it treats or would treat an officer who does not have that particular disability and whose circumstances and ability are comparable to those of the disabled person.
There are no circumstances in which Direct Discrimination is justified.
An example of Direct Discrimination would be if a Force operated a blanket ban on officers with diabetes undertaking driving duties without taking into account individuals circumstances and abilities.
Disability Related Discrimination
This would occur if a Force treats an officer less favourably, because of a reason relating to their disability, than they treat or would treat an officer to whom that reason does not or would not apply in a situation when such treatment cannot be justified.
An example of Disability Related Discrimination would be if an officer with arthritis is turned down for a role in the Custody Office. He is being treated less favourably (in being turned down for the role) for a reason relating to his disability (his inability to type) than someone to whom this reason does not apply.
In order for the force to justify any disability related discrimination they must:
Show that the treatment was material to the particular circumstances.
Demonstrate that there were substantial reasons for the treatment.
The force would not be able to claim justification if they had not:
Complied with the duty to make reasonable adjustments (unless they can show that the treatment would have been justified even if they had complied with this duty.)
If a force applies provision, criterion or practice that places a disabled officer in substantial disadvantage in comparison with officers who are not disabled they must take such steps as are reasonable in all circumstances to remove this substantial disadvantage.
When deciding if an adjustment is reasonable consideration must be given to the following:
The extent to which the adjustment would alleviate the disadvantage.
The practicalities of the adjustment.
The cost of the adjustment.
The potential disruption of making the adjustment.
The nature, size and financial resources of the force.
Adjustments could include alterations too:
Duties or hours of work.
Adjustments could also include:
Permitting absence for treatment or rehabilitation.
Providing a supportive working environment including training.
The approach should be to fit the job around the officer not the officer around the job. A failure to make a reasonable adjustment cannot be justified by the force, however the duty to make a reasonable adjustment will only apply if the force has knowledge of the disability.
If an officer suffers less favourable treatment because he or she has taken sick leave, this may be unlawful if the sick leave was related to a disability. It could be disability related discrimination unless the force can justify the treatment. As a reasonable adjustment, the force she consider excluding disability related sickness from selection criteria for:
Promotion or similar procedures.
They could also allow a period of Disability-Related Leave; for example, time off to undergo medical treatment related to a disability.
In most cases, an officer on sick leave is entitled to full pay for 6 months and then to half pay for 6 months. After a year's absence there is no entitlement to pay while on sick leave.
A chief officer can exercise discretion to maintain an officer on full pay instead of half pay or full pay instead of half or no pay. Particular circumstances where this should apply are:
The incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty.
The illness may prove to be terminal.
The officer has been referred to a selected medical practitioner for consideration of permanent disablement.
In recognition of the possible impact of the DDA and disability related sick leave, sick pay should be extended where the chief officer considers that it would be a ‘reasonable adjustment' to extend sick pay generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.
Recuperation and Restricted Duties
A force may consider providing an officer with recuperation or restricted duties as a reasonable adjustment to reduce effects of their disability. Recuperative duties are usually for a set period of time. They could include the following:
A retraining programme.
A period of physiotherapy.
A period of reduced working hours so that the officer can gradually return to full duties.
Restricted duties can be a temporary or permanent adjustment. They could include the following:
A fixed shift pattern.
Reduced working hours.
Recuperative or restricted duties should be arranged in consultation with the officer and the Force Occupational Health Department.
Disablement under the Police Pension Regulations is different from the definition of disability under DDA, and occurs if an officer is permanently unable to perform the ordinary duties of a member of the force as a result of a physical or mental condition. Medical retirements are the responsibility of the Police Authority after advice from a selected medical practitioner. They should retain officers who are able to make a valuable contribution and should not retire on medical grounds unless necessary. This principle is consistent with the DDA, which places a duty on the force to make reasonable adjustments for disabled officers to continue performing duty.
If an officer is disabled or on restricted or recuperative duties they should not be prevented from the following:
Being appraised in their current role.
Applying for other roles.
The Force has a duty to make reasonable adjustments and not to treat the officer less favourably for a reason connected to their disability unless it can be justified. Centrex will make reasonable adjustments for disabled officers going through the promotion process.
Heath and Safety
The fact that an officer has a disability does not necessarily mean that he/she represents an additional risk to health and safety. Under health and safety law, every Force must ensure (so far as reasonably practicable) the health, safety and welfare at work of all officers. They must asses the risks and put in place measures that reduce the risks to as low a level as can reasonably be achieved. Genuine concerns about the health and safety of any officer (including a disabled officer) may be relevant when seeking to establish that disability-related less favourable treatment of a disabled officer is justified. However, it is important to remember that the law does not require the Force to remove all conceivable risk, but to ensure that risk is properly appreciated, understood, and managed.