Employer should have looked for alternative test in making reasonable adjustments
In a recent case, Shields v Surrey and Sussex Police, an employment tribunal had to decide whether a police force discriminated against one of its police marksman when he was removed from firearms duties due to hearing loss.
Shields joined Surrey Police in 1998 and completed his firearms training in 2001. He had a distinguished career as a police marksman and was involved in numerous armed operations, one of which resulted in him receiving a chief constable’s commendation.
Early on in his career he had suffered an ear infection which resulted in high frequency hearing loss. He underwent annual hearing tests throughout his time as a marksman. However, following the introduction of a new minimum permitted hearing level in 2013, he failed the hearing test and was immediately removed from firearms duties. He pursued claims for discrimination arising from a disability, indirect discrimination and a failure to make reasonable adjustments under the Equality Act 2010.
The first of these claims occurs where an employer treats an employee less favourably because of something arising from the employee’s disability, and cannot show the treatment is a proportionate means of achieving a legitimate aim. Indirect discrimination occurs where an employer applies an apparently neutral provision, criterion or practice (PCP) to an employee which puts, or would put, those who suffer from the employee’s disability at a particular disadvantageand the PCP cannot be objectively justified. Disability discrimination can occur where there is a failure to make a reasonable adjustment.
Tribunal
The tribunal found there was no evidence to suggest Shields’ hearing loss had ever caused any operational difficulty during his “many years’ distinguished service” as a police constable authorised to carry firearms. It was noted that the London Fire Service carried out a practical hearing test which was at the time the “best available”, and that there were sufficient operational similarities between the police and fire service for the test to have some application inShields’ case, but he was not offered the opportunity to take it.
The tribunal decided the employer discriminated against Shields by failing to make reasonable adjustments in not arranging for him to undertake the London Fire Service functional test of his hearing ability. Shields’ claims for discrimination arising from a disability and indirect discrimination failed.
Comment
The employment tribunal in this case placed significant emphasis on the fact that Shields had successfully undertaken his role for 12 years with an exemplary record. Employers should be particularly cautious in circumstances where employees have been undertaking a role for a significant period of time without any concerns arising regarding their disability.
Employers should also be careful whenever new standards are introduced which potentially prevent an employee from continuing to undertake his or her duties due to a disability. Organisations should look at any possible alternative tests which may allow employees to continue in their role, and ensure they keep clear records of their consideration of each alternative, including why it would not be suitable.
Employers are only required to make ‘reasonable’ adjustments and all the circumstances of a particular situation will be taken into account by a tribunal in determining what is reasonable.
Kristie Willis is a solicitor with law firm BTMK
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