Hinsley v Chief Constable of West Mercia Constabulary UK/EAT/0200/10/DM

Subjects: Disability Discrimination – Reasonable Adjustments – Reinstatement

C was a probationary police constable. She resigned and then, after the resignation had taken effect, asked to be reinstated on the ground that her decision to resign had been made too hastily and as a result of her depression. The ET held that reinstatement was not a reasonable adjustment because R had no power to reinstate. C appealed on the ground that the ET was wrong to find that R had no power to reinstate.

Facts

C was a probationary police constable in the West Mercia Police. She resigned because she was suffering from depression. Although the depression was not diagnosed until after her resignation took effect, she asked to withdraw her resignation and to be reinstated. R refused on the basis that it was bound by the Police Regulations and that the Police Regulations did not provide for the reinstatement or reengagement of a police officer who had left the force. C would have to re-apply to the police force like any other ex officer-holder. The ET held that s.16A(4), DDA 1995 (duty to make reasonable adjustments) did not require R to go beyond its statutory and regulatory powers to reinstate C. C appealed.

Held

The EAT upheld the appeal. The ET was wrong to accept R’s case that it did not have power to reinstate C. The Police Regulations did not expressly permit reinstatement, but nor did they expressly prohibit it – therefore, reinstatement was possible. It was a reasonable adjustment in circumstances where: (i) C met the requirements for appointment when she was first appointed, (ii) she would still have to complete her probation even after reinstatement, (iii) her performance was not an issue, (iv) R had tried to persuade C not to resign, and (v) the House of Lords had held in Archibold v Fife Council [2004] IRLR 651 that the duty to make reasonable adjustments required the respondent to allow the disabled claimant to dispense with a competitive interview for an alternative role.

Comment

In the present case C complained that R had failed to reinstate her after her resignation had taken effect. Although police officers are office holders, the holding of the office of constable is treated as employment for the purposes of the protection afforded to employees under s.64A DDA 1995. C was therefore entitled to rely on s.16A of the DDA 1995, which prohibits discrimination after an employment relationship has come to an end. Note also that even though the appointment of police officers is governed by statute the EAT held that it was open to the Chief Constable to reinstate the officer pursuant to his obligations under the DDA 1995.