The claimant was a police officer who was disabled by a range of problems, including obsessive compulsive disorder. The medical evidence was that he was not dangerous, although his medical conditions could make him appear threatening to others.

At a pre-Christmas social event, the officer had behaved extremely badly toward his colleagues. They reported his behaviour, saying that they felt that he needed help. They thought that he had a mental illness and they were frightened by his behaviour.

The officer was not considered fit for the role of a front line police officer and the force considered that the fact that he appeared frightening to others meant that he should work under supervision and that he should not have contact with the public. Eventually, they referred him to a medical practitioner for consideration whether he was permanently disabled from performing his duties as a member of the force. He was required to retire pursuant to Reg. A20 of the Police (Pensions) Regulations 1987 but successfully appealed on the ground that permanence had not been established.

After an 8-day hearing, an employment tribunal dismissed all of the officer’s claims. He appealed to the Employment Appeal Tribunal, partly on the ground that he had been discriminated against because, either his true disability had been misunderstood (so that he was wrongly perceived to be dangerous) or those dealing with him had wrongly perceived him to have a disability which caused him to be dangerous. It was argued on his behalf that, if appearing to be dangerous was part and parcel of his disability, then that appearance of dangerousness could not be taken into account by the force when deploying him.

The Employment Appeal Tribunal (Slade J and 2 lay members) rejected all of the officer’s grounds of appeal, holding that the relevant finding of fact was that his treatment had not been influenced by stereotypical views of mental illness. They also held that a Disability Discrimination Act 1995 claim had to be based on the actual (not wrongly perceived) disability of the claimant or of a person associated with him.

The officer appealed, with the support of the Police Federation, to the Court of Appeal. That Court (Mummery, Rix and Patten LJJ) dismissed the appeal, ordering the officer to pay the Commissioner’s costs. They praised the Metropolitan Police Force’s "responsible management of a difficult workplace situation" and said that the force had "shown a proper understanding of the humane values promoted by the legislation and of the importance of sensitively handling disability situations, both in deciding what can be done and how to do it".

Before the Court of Appeal, the officer relied on paragraph 47 of the judgment of Mummery LJ in Stockton on Tees BC v Aylott [2010] ICR 127, CA, in support of an argument that, since the medical evidence was that his disability caused him to appear frightening to others (whilst he was not dangerous), his frightening appearance could not be left out of the characteristics of the hypothetical comparator. Mummery LJ rejected this argument, clarifying that, in Aylott, the claimant’s behaviour had been provoked by his employer, knowing of his disability.

Finally, the Court of Appeal gave a clear warning that appellants were not to construct ingenious legal arguments which were not based on the facts found at first instance and that their representatives should keep the Court of Appeal updated on material changes of position. In the present case, the officer had taken ill-health requirement from the force after the EAT hearing (despite having previously appealed against medical retirement).

The judgment is here:

Dijen Basu is instructed by a number of police forces and organisations in relation to matters of civil and public law unique to policing. He is described by Chambers UK 2011 as "an all-round performer ... " and he is recommended by Legal 500 for Professional Disciplinary work and Police Law.