In the case of Mr S Karim v The Commissioner of Police of the Metropolis, Shafi Karim successfully brought a claim against the Metropolitan Police (the Met) for discrimination arising from his disability, indirect disability discrimination and failure to make reasonable adjustments.
Background
Mr Karim joined the Met on 30 November 2015 as a probationer police constable.
The Met have a 24-month probationary period, in which a probationer must demonstrate that they are fit, physically and mentally, to perform the duties of a fully operational. During his probationary period, Mr Karim was expected to have successfully completed the core competencies set out in his Student Officer Record of Competence (SOROC) which included amongst other things, dealing with people on the street, in confrontational scenarios, and conducting stop and searches. All of these scenarios required a student officer like Mr Karim to be fully deployed and could not have been completed if the probationer was only carrying out adjusted duties in office-based roles.
Shortly after joining the Met however, Mr Karim’s training was put on pause and he was referred to the occupational health department following risks that were raised relating to his hearing aids. Mr Karim was struggling with his hearing whilst training outside, and reported difficulties in hearing what was being said on the radio. As a result of this, he was then moved to a non-operational role in March 2016.
In September 2016, Mr Karim was allowed to return to operational working and was posted to Finsbury Park before becoming part of an ’emergency response’ team in January 2017. Just 6 months later, Mr Karim was posted to a ‘restricted duties’ station officer role in which he had no contact with suspects or police outside of the police station he was at. During this time, Mr Karim raised concerns about his hearing again, such as how he received “feedback” if objects came too close to his hearing aids. Mr Karim’s line manager at the time and other colleagues also noticed how Mr Karim did not always hear when he was spoken to. Mr Karim was again referred to the occupational health department and an extension was applied to Mr Karim’s probationary period.
In January 2018, the occupation health doctor recommended 2 reasonable adjustments: 1) good-quality in-ear hearing aids and 2) a functional assessment to determine whether Mr Karim could hear adequately in an operational role.
Mr Karim was advised to approach Access to Work to get funding for the in-ear hearing aids but was told he would need to pay a proportion towards the costs of this, with the Met Police paying for the remainder. Unfortunately, Mr Karim could not afford to pay his proportion of the costs for the in-ear hearing aid. Access to Work therefore recommended a cheaper alternative, namely a “Phonak Roger Pen” (Roger Pen). This was a wireless microphone which would help enhance the sound of Mr Karim’s existing hearing aids. Mr Karim was again required to pay a proportion towards the cost of the Roger Pen as well as the insurance for the device. Mr Karim eventually received this equipment in March 2020.
Mr Karim remained in office-based roles until an “at works test” was arranged to assess his hearing and reactions in operational scenarios. This “at works test” took place on 21 May 2021. The “at works test” involved 1) a confrontational scenario, 2) a chasing exercise, 3) a high street patrolling scenario in a busy shopping centre, and 4) a “blue light run”. He was made to complete a series of role play tests to prove his ability to work at operational level. Mr Karim was not provided with any re-training of the Officer Safety Training before the test. The last time he had been in an operational role was also back in July 2017. Unfortunately, issues arose during all four of Mr Karim’s test scenarios, including Mr Karim:
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being over reliant and having to hold his Roger Pen out in front of him during the confrontational exercise (which was deemed unsafe);
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having to stop during the stimulated chase as his hearing aid battery ran out;
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having to have messages over the radio to him repeated;
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and having feedback in his hearing aids as a result of the sirens, which Mr Karim described as “torture”.
The assessing officers concluded that Mr Karim was not capable of becoming a fully operational and effective police officer. This was despite the fact that Mr Karim’s hearing equipment had not been tested for compatibility with the police van’s equipment. Also, neither of the assessing officers had undergone any disability awareness training (notwithstanding Access to Work making provision for this) nor did they have any experience of working with officers with a hearing disability.
The concerns surrounding Mr Karim’s hearing and ability to perform resulted in him being dismissed with immediate effect on 12 July 2021, after having remained on probation for five years following several extensions to his probationary period.
Findings
At a hearing held over October and November 2022, Judge Brown concluded the following:
Discrimination arising from Disability under s15 Equality Act 2010 (EA 2010)
The Tribunal was satisfied that Mr Karim was dismissed because of something arising in consequence of disability. The “something arising” was the training officers’ assessment at the “at works test” that he was not capable of carrying out his role safely.
The officers who conducted the “at works test” were clear that they were testing Mr Karim’s ability to hear and communicate and to use his equipment in confrontational settings, rather than testing his general policing skills. His failure of the “at works test” arose from the officers’ assessment that he could not carry out his role safely using the Access to Work equipment. This arose from his disability, and not from his skill as a police officer. The Met had therefore subjected Mr Karim to discrimination arising from disability by dismissing him.
Indirect Disability Discrimination under s19 EA 2010 and Reasonable Adjustments under s20 & 21 EA 2010
Mr Karim was held to have been put at substantial/particular disadvantage by the Met’s provision, criterion or practice (PCP) of:
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placing probationer officers in purely administrative roles pending advice regarding their ability to undertake operational work; The Tribunal held that the placing of Mr Karim in limited administrative office roles put him at a substantial disadvantage as he was not able to complete the entire core competencies set out in his SOROC (which included various duties in a confrontational setting) as required to pass his probation. The fact that he was away from operational duties for at least 4 years also inevitably meant that his operational skills and knowledge would have been lost and so he was more likely to underperform in a test using operational skills like the “at works test”.
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not providing full financial cover to obtain necessary equipment through Access to Work; The Tribunal were satisfied that as Mr Karim could not afford to pay his proportion of the in-ear hearing aids, he did not obtain these, despite being advised he would need these to undertake his operational work. Instead he was provided a Roger Pen, which was suitable only for non-operational roles
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requiring disabled officers to undertake an “at works test” to determine their fitness to become an officer; The Tribunal held that Mr Karim was put at a particular and substantial disadvantage as the test was a “pass or fail” test and, because Mr Karim failed it, he was subsequently dismissed.
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requiring officers to be fit, to perform the duties of his office and/or to be able to undertake all operational and confrontational duties: Mr Karim was assessed as not being capable of hearing instructions and so did not pass the “at works test”, leading to his dismissal.
Judge Brown concluded that the Met failed to make reasonable adjustments to avoid these disadvantages by failing to:
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Pay the full cost (including the insurance) of the high-end enhanced in-ear hearing aids which had been recommended by occupational health;
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Allow Mr Karim to continue in his role, if the in-ear hearing aids had been provided, rather than putting him in non-operational roles;
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Provide Mr Karim with refresher operational training and failing to allow him to practise operational duties with his ordinary hearing aids and make any necessary adjustments to his ordinary hearing aids, before he undertook the “at works test”;
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Allow Mr Karim more than one opportunity to undertake the “at works test” before deciding to dismiss him.
Whilst Judge Brown accepted that the Met had legitimate aims of:
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Ensuring that probationer police constables are properly trained in order to be physically and mentally fit to perform the duties of a police constable; and
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Ensuring so far as possible the safety of the people of London and the police officers deployed to protect them,
The provision, criterion or practices were not a proportionate means of achieving these aims. It was held that there were less discriminatory ways of achieving these legitimate aims. The failure by the Met to make the reasonable adjustments resulted in indirect discrimination towards Mr Karim.
Direct Discrimination under s13(1) and s39(2) EA 2010
Although the above claims were successful, Mr Karim’s claim for direct discrimination by the Met was dismissed. It was held that the Met had not directly discriminated against Mr Karim because of his disability.
Compensation:
A further hearing is scheduled to take place in April 2023 to determine the amount of compensation payable to Mr Karim.
What employers can do to avoid disability discrimination
The above case shows how important it is for employers to take steps to minimise the risk of successful disability discrimination claims being brought against them. Ways employers can do this include:
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reviewing and updating relevant disability and sickness policies
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obtaining and considering occupational health reports
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training staff on equality, diversity and disability awareness
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considering any reasonable adjustments that can be made to assist employees in remaining (or returning) to work
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ensuring there are effective communication channels with employees to discuss their health and well-being and managing and resolving any issues raised effectively at an early stage, where possible.
If you would like advice on the above or on any employment law matter, then please contact our expert employment law and HR team on 0845 287 0939 or submit your enquiry online.
